Tag Archives: constitutional morality

1

Shampa Singha v. The State of West Bengal & Ors. WP 23120(W)of 2018

|

On the 29th of January, 2019, a division bench of the Calcutta High Court applied the Navtej Johar decision to a lesbian couple, holding that consensual co-habitation and intercourse between adults of the same sex does not fall within the ambit of S.377. As in the Sreeja case, the sexual relationship between the two women involved was openly mentioned in the court. The facts of the case are not entirely clear but it is evident that the writ is filed by one of the partners. Presumably, one of the partners, had returned to her mother and the petitioner partner had filed a writ alleging that the mother was holding her partner captive. The other partner, who had hitherto been residing with her is now inclined to stay with her own mother. There are three facets which are interesting to note about this case:

  1. Article 21

Following Navtej Johar, this case also finds that the right to life under Article 21 includes an inherent right to determine, by oneself, one’s sexual orientation and sexual partner. This choice is inherent under Article 21 even if the choice is not made for procreation. Additionally, the court notes that not only is this right inherent under Article 21, it is also essential for the enjoyment of the life and liberty guaranteed under Article 21.

  1. Constitutional Morality

The court also notes that our scheme of constitutional morality does not permit objections of religion or personal morality to whittle down this inherent right (of orientation and choice of partner). It is unclear why the court specifically mentions religion as an impermissible restriction on the abovementioned right. One can conjecture that perhaps in the argumentation stage before the court, one’s religious beliefs were pleaded as a ground to deny cohabitation of the two women involved.

  1. Psychological Test

Finally, the court notes that the partner of the petitioner, whom the court calls a “victim” for unexplained reasons, has been assessed for psychological soundness. It is unclear why the court mentions it. It is also unclear whether the court ordered this test or whether this test has been performed due to extant facts of the case. Since the judgment does not summarize the facts or the arguments, it is hard to determine the appropriateness of this psychological test. However, at the outset, it can be said that a psychological test does prima facie seem out of place in this kind of case which involves two majors who want to exercise their right of whether or not to live together arguably, though not explicitly, protected under Article 21 in this case. The Navtej judgment has clearly stated that adults have a right to consensual sexual intercourse with a person of their choice regardless of sex. To avail this right, that judgment has not forwarded a requirement of psychological testing.

I am grateful to Dr. L. Ramakrishnan (Ramki) for telling me about this case. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.

0

Kirankumar Rameshbhai Devmani v. State of Gujarat [(2014) 71 VST 555 (Guj)]- Part 2

|

In Part 1 of this post, I summarized the arguments of the parties and the decision of the court. In this part, I will deal with the three remarkable features of the case I had mentioned before: 1. the court’s attempt to give meaning to the morality of the constitution[1], and to apply this meaning in this case; 2. legal incompetence at official levels, and how it can delay and frustrate day to day affairs of people; and 3. the place occupied by same sex sexual relations in the case. To refresh the memory of readers, the present case involved a film about a boy who discovers that he is gay. The film, through the boy, depicts various difficulties faced by gay people in society. The film was refused tax exemption given to all Gujarati colour films and the petitioner who is the producer and director of the film challenges this refusal. See full factual scenario in Part 1.

  1. CONSTITUTIONAL MORALITY

In Part 1, I had explained how the court found the withholding of tax exemption as illegal and subsequently that such withholding would amount to a violation of the free speech and expression right under Article 19(1)(a) of the constitution. To more fully explain how diverse points of view can co-exist in democratic constitutional schemes, it delved into the morality of the constitution. It found that the peaceful co-existence of a “plurality of ideologies” was not only one of the aims but also one of the guiding principles of our constitutional scheme [para 31]. In the words of the court:

“In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different viewpoints are accepted and respected. In a topic as one on hand, there are bound to be as many view points as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully co-exist.” [para 31].

It further went on to state that this plurality of ideologies allowed different viewpoints to stand so long as they did not violate the constitution. Such reasoning goes a long way to re-establish the constitutional values on which the Indian constitution has been drafted and to re-position the judge as a dispassionate protector of those values. This is especially important to motivate State actors (eg. government employees, judges etc.) to set clear boundaries between their personal beliefs and the beliefs of the constitution and to remind them that when they are acting in the capacity of their office, the only set of values that they can legitimately chase are those enshrined in the constitution. Contrast this with the Suresh Kumar Koushal case in which the court called the LGBT population a “miniscule fraction” [para 43] arguing for “so called rights” [para 52] betraying a sense of antipathy and revulsion for the community. For further reading on the kind of language used by the Supreme Court in the Suresh Kumar Koushal case see, Danish Sheikh, “The Quality of Mercy Strained: Compassion, Empathy and Other Irrelevant Considerations in Koushal v. Naz” (2013) 6 NUJS L Rev 585.

Apart from reminding institutional actors of their duties, the court has also re-assured them that their upholding a particular right would not mean their personal sympathy for the right, as long as the right is merited by the constitution. Such logic would attempt to persuade judges personally unsympathetic certain claims, to apply constitutional standards and abjure their personal opinions when in the business of adjudication.

“Endorsing one’s right of expression does not imply endorsement of his view point. In any vibrant modern democratic society, divergent viewpoints is not only inevitable but is considered as a healthy sign. Diverse and antagonistic viewpoints can coexist and survive side by side peacefully in a modern cultured society.” [para 50].

This re-assertion of constitutional values and not personal viewpoints on which a case ought to be decided is reminiscent of the reasoning of the Delhi High Court in the Naz case. There, the Delhi High Court expressly stated that regardless of popular opinion on the topic of homosexuality, S. 377 should be held to be unconstitutional if it did not pass the threshold of fundamental rights:

“Popular morality, as distinct from constitutional morality derived from constitutional values, is based on shifting and subjecting [sic] notions of wrong and right. If there is any type of morality that can pass the pass the test of compelling state interest, it must be constitutional morality and not public morality” [para 79].

 

  1. OFFICAL INEPTITUDE

The second remarkable thing about this case is how clearly it demonstrates official ineptitude and delaying tactics used by authority figures. In this case, there was a clear policy highlighted for refusing tax exemptions. As per para 4 of the policy, the only films that could not receive the exemption were films that depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.”  There were no other reasons to refuse the exemption and there was no discretion in this matter. Yet, the Commissioner of Entertainment Tax (“Commissioner”) refused the exemption to the film on grounds that it had been given an A certificate by the Censor Board, a reason beyond the scope of the policy. In order that the he may make a representation against this wholly illegal reason, the producer approached the Commissioner either in person or through letters on the 24th of April, 2013, 26th of April, 2013, 29th of April, 2013 and the 16th of May, 2013 before he could hear back from him. He even penned a letter to the Chief Minister complaining about the non-consideration of his requests for representation. Therefore, 5 letters had to be written only to get attention to an application which had been refused on grounds not even present in the policy. These dates are taken on record by the court in the case.

After multiple letters were sent to him, the Commissioner ultimately replied asking the producer to delete certain dialogues and mute certain words, and to submit a signed affidavit to that effect before his film could be tax exempt. The Commissioner was not empowered to do so and acted beyond the scope of his powers. When the producer refused to comply, the Commissioner once again rejected the exemption application. Even when the Ministry of Information and Broadcasting directed the Commissioner to identify a “basis” for his refusal, the Commissioner failed to fathom a policy reason for refusing tax exemption. Instead he content himself with reasons such as the film did not have a useful message, it could create friction between members of society, it was controversial, it promoted homosexual ideology, and other reasons highlighted in Part 1.

The law on paper may provide limited reasons for refusing tax exemption but a private actor is caught in a frustrating legal web when authority figures act clearly outside the scope of those powers and assume for themselves grounds for refusal which do not exist as per government policy. For this producer, this meant a long drawn legal battle and the delay of the release/tax exempt status of the film. It is unknown whether there was any departmental action taken against the Commissioner for acting outside his scope. However, the court did acknowledge that the commissioner’s objections were, “wholly misguided based on fallacious premises” [para 53]. The Commissioner’s refusal was not just a misapplication of a rule of law, it was the complete avoidance of it. Such avoidance delayed a simple application by nearly a year. What a weapon (accidental/deliberate) legal incompetence can be.

  1. SPACE OCCUPIED BY SAME SEX RELATIONS

The final important legal manoeuvre of note in this case is the manner in which the court put the Suresh Kumar Koushal case in perspective. One would imagine that with that decision coming out in December, 2013 and finding that same sex sexual relations were a kind of criminal unnatural sex, a High Court ruling in February, 2014 may find difficulty in allowing tax exemption to a film about homosexuality. However, this court was quick to find that the Suresh Kumar Koushal case had no application to the present query. That case concerned itself with some forms of sex which had been criminalized and not with the criminality of a certain sexual orientation. Although it is important to understand that S.377, Indian Penal Code, 1860 (“S.377”) has a disproportionate impact on the LGBT community, it is also important to understand that it does not criminalize homosexuality, and it’s continued existence cannot be used as reason to deny any conversation about the LGBT community, or to deny other rights of the community. The legal clarity displayed by the court is laudable. Till the time that this section occupies a place in the law books,  reasoning of this kind can lead the way for other State authorities/private persons that may have otherwise been persuaded by the existence of S. 377 to deny claims with a LGBT association.

 

 

[1] All references to the constitution in this post refer to the Constitution of India, 1950.

2

Kirankumar Rameshbhai Devmani v. State of Gujarat [(2014) 71 VST 555 (Guj)]- Part 1

|

On the 28th of February, 2014, the Gujarat High Court sitting as a division bench considered whether the Gujarati film Meghdhanushya, which was on the topic of homosexuality, qualified for the entertainment tax exemption given to all Gujarati films since 1997. In brief, the court decided that the film qualified for the exemption as per the government policy regulating the issue, and that it was not caught within any of the exceptions to the policy. However, there are three remarkable features of this case: 1. the court’s attempt to give meaning to the morality of the constitution[1], and to apply this meaning in this case; 2. how legal incompetence at official levels can delay and frustrate day to day affairs of people; and 3. the place occupied by same sex sexual relations in the case. In this edition, I will summarize the arguments of both parties and the decision of the court. In the next edition, I will address the three remarkable features abovementioned.

WHAT THE FILM WAS ABOUT

Summarily, the film was about a boy who discovers that he is gay. Through the medium of this boy, the film depicts the various difficulties faced by gay persons in society.

THE STATE POLICY

The State of Gujarat framed a scheme dated June 8, 1999 exempting all Gujarati colour films produced after April 1, 1997 from entertainment tax. This measure was intended to lower the ticket prices of Gujarati films in the cinema halls, giving them a fighting chance against the Hindi film industry. As per para 4 of the policy, the only films that could not receive the exemption were films that depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.” The petitioner, being the producer (and director) of the abovementioned film, applied to the Commissioner of Entertainment Tax (hereinafter “commissioner”) for the tax exemption. After several rounds of back and forth with the commissioner, the petitioner’s application was rejected. The petitioner challenged the refusal in the present case arguing that as per the 1999 policy, his film should receive the tax exemption, and that it did not fall within any of the exceptions abovementioned.

ARGUMENTS OF THE STATE

It is to be noted that the commissioner was obligated to base his decision for refusal on the grounds mentioned in the exceptions to the policy. However, he did not. His reasons for refusal did not pin point the exact policy reason why the film was not eligible for exemption. The reader will note that the only reasons for refusal were either: 1. Evil customs; 2. Blind faith; 3. Sati; 4. Dowry; 5. Such social evils; and 6. Films against national unity. However, the commissioner’s reasons did not pertain to any of these grounds. Similarly, the State counsel’s arguments also did not pertain to any of these grounds though it is to be noted that the State counsel did attempt to make two thin arguments on policy grounds which he was not able to substantiate as per the judgment. As a result, the court had a more convoluted job ahead of itself. Instead of analyzing whether the reason for refusal reasonably fit into any of the grounds for exception, it had to counter the generalist objections of the commissioner and the State which neither pertained to policy, nor stemmed from it. As the court replies to each argument raised by the commissioner’s final order and the State counsel in his defence of the order, I will not separate the arguments by the commissioner and State. Instead, I will present them jointly as the total set of objections raised by the State and its instrumentalities to providing the tax exemption to the film. Here are the objections:

  1. The tax exemption is to be granted to films providing entertainment or carrying a “useful message” to society. Granting an exemption to such a film will create “friction between members of the society holding diverse ideologies.” This will likely cause “deterioration of law and order.” [para 6(i) of the judgment].
  2. The topic of the film is controversial and “no decent family can watch the film together.” [para 6(ii) of the judgment].
  3. The core of the film is to promote homosexuality which is not only a crime (S. 377, IPC)[2] but also a social evil.
  4. The film producer is free to exhibit the film even without the tax exemption.
  5. Granting tax exemption to the film would suggest that the government endorses the homosexual ideology.
  6. Homosexuality increases the incidence of AIDS.
  7. The film is a threat to national unity.

ARGUMENTS OF THE PETITIONER AND THE AMICUS CURIAE

The arguments of the petitioner’s counsel are not outlined in the judgment but the amicus argued three points:

  1. The film does not fall under any of the exceptions to the policy and therefore should receive the tax exemption.
  2. If the State denies exemption to the film without providing an intelligible differentia and a reasonable nexus, then it violates the Article 14 equality guarantee of the constitution by discriminating against the present film and other Gujarati films which have received the exemption.
  3. Denial of the tax exemption places a heavy financial burden on the producers of the film and indirectly restricts the Article 19(1)(a) freedom of speech and expression through an extra constitutional route.

DECISION OF THE COURT

The court noted that providing the tax exemption was the rule and not providing it was an exception. The exemption was not a matter of discretion in that sense. To be disqualified from the exemption, the film had to necessarily fit into one of the categories mentioned in the policy.  Most importantly, the court noted that its decision was guided by the policy alone and not by its own personal opinion on homosexuality. In the words of the court, “we have no personal views and beliefs. Our only personal view is to uphold the rule of the law…” [para 51 of the judgment]. Accordingly, the court replied to each State objection in the following manner:

  1. The purpose of the government policy is to grant tax exemption to all Gujarati colour films made after April 1, 1997, en masse, and not just to films which send “useful” messages to society. Here the court had to contend with the preamble to this policy which outlined its purpose as the promotion of high quality Gujarati cinema. However, the court concluded that the tax exemption is given to all films and not just high quality films or films judged by any other standard. Accordingly, the true purpose of the policy was to enable Gujarati films to compete with the Hindi film industry by making them a little cheaper to watch. There was no evidence of a law and order threat by allowing the tax exemption to the film. Neither the State nor the commissioner had presented any data to support this claim and the police and the Home Ministry had expressed no fears akin to the “spark in the powder keg” standard necessary to invoke an Article (19)(2) restriction on the airing of the film.
  2. Regardless of how controversial a topic is (the court used the phrase “thought provoking”) a topic is, a film can only be denied exemption if it fell into the exception categories. The court noted that a film can be denied exemption if it promotes an evil custom. However, the court noted that to fall within this exception category, a thing needs to be a custom first. Homosexuality was not a custom. Therefore, it could not fall within this category. The other categories of blind faith, dowry, sati and such evil practices, do not apply to this case. The court noted that perceptions change from time to time and generation to generation. What a family can and cannot do together may also change accordingly, from time to time, generation to generation, and from region to region. In any case, that was not a ground to deny a film exemption.
  3. The film does not promote homosexuality. It merely talks about the struggles of being a gay person in society. The court concludes that, “[e]ven a person with homosexual preference as human being has right to life and liberty guaranteed under Article 21 of the [c]onstitution.”[3] This point however, raises the following question: would the film have been denied exemption if it promoted homosexuality? In the Suresh Kumar Koushal case [para 38], the Supreme Court had held that it is not a crime to be gay; only the sex act is criminal. Movies do promote some messages, intentionally or unintentionally. A film like Bahgban, for example, does convey what it means to a good son. A film like Hum Saath Saath Hain, does convey, what it means to have a happy marriage, and a happy family. Similarly Hindi films have traditionally conveyed other messages about a good wife, good love etc. Arguendo, this film promoted homosexuality, would it have been denied the exemption? Arguably not as it does not fit into any of the exception categories which are admittedly the only grounds on which tax exemption can be denied.
  4. The question was not whether or not the producer could still exhibit the film but that whether the film qualified for tax exemption.
  5. The only ideology the government endorses is that all Gujarati films produced after April 1, 1997 are eligible for tax exemption unless they fall in any of the exception categories. Granting of the tax exemption does not signify that the government endorses the message of the film. Lots of films are released every year and the government cannot be said to endorse the message of each of the film. The government is a neutral by-stander. Significantly, “[e]ndorsing one’s right of expression does not imply endorsement of his point of view.” [para 50 of the judgment].
  6. Men having sex with men have a higher incidence of AIDS because a lot of people do not come out in the open to seek medical facilities or help owing to fear of law enforcement agencies.
  7. There is no evidence to prove that the airing of the film will any way hamper national unity nor was the court able to see how the airing of this film could do so.

Accordingly, the court noted that the film was illegally denied tax exemption available to all other films in the same category, and that there was no reasonable basis to treat this film differently, which lead to the violation of Article 14 of the constitution. Additionally, this illegal taxation made this film more expensive to watch which would severely drain the audience for the film and in this manner place a restriction on the freedom of speech and expression of the film producer, which is neither reasonable, nor sanctioned by law, and for those reasons violative of Article 19(1)(a) of the constitution. In keeping with its decision, the court ordered the State to provide the film the requisite entertainment tax exemption and issue a certificate to that effect.

[1] All references to the constitution in this post refer to the Constitution of India, 1950.

[2] Indian Penal Code, 1860.

[3] Para 27 of the judgment.