A Valiant Few Is All It Takes for a Marginalised Group to Secure Its Rights

There are crucial parallels between the Section 377 ruling and a 1929 Canadian constitutional case that decided that women were eligible to sit in the Senate.

There is a remarkable similarity between the Supreme Court of India’s recent judgment in Navtej Singh Johar and Others vs Union of India and Others and the Privy Council’s 1929 verdict in Edwards vs Canada (AG). The latter – also known as the Persons Case – is a famous Canadian constitutional case that decided that women were eligible to sit in the Senate of Canada.

The legal case, put forward by the government on the lobbying of a group of women known as the ‘Famous Five, began as a reference case in the Supreme Court, which ruled that women were not “qualified persons” and thus ineligible to sit in the Senate. The case then went to the Judicial Committee of the Privy Council – at that time the court of last resort for Canada within the British Empire and Commonwealth – which overturned the Supreme Court’s decision.

A landmark case

The Persons Case was a landmark case, it established that Canadian women were eligible to be appointed senators. Some others have interpreted the Privy Council rule as causing a change in the Canadian judicial approach to its constitution, an approach that has come to be known as the ‘living tree doctrine‘. This is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times.

The controversy regarding the legal personage of women in Canada started with a petition to the federal government. Emily Murphy, women’s rights activist, jurist and author who in 1916 became the first female magistrate in Canada and in the British Empire, asked four other prominent Albertan women to join her in a petition to the federal government on the issue of women’s status. On August 27, 1927, the four other women (Irene Marryat Parlby, Nellie Mooney McClung, Louise Crummy McKinney and Henrietta Muir Edwards) joined her for tea at her house. The five women, later to be known as the Famous Five (or the Valiant Five) all signed the petition, asking the federal government to refer two questions relating to women’s status to the Supreme Court of Canada. The two questions were:

  1. Is power vested in the Governor General in the Council of Canada, or the Parliament of Canada, or either of them, to appoint a female to the Senate of Canada?
  2. Is it constitutionally possible for the Parliament of Canada under the provisions of the British North America Act, or otherwise, to make provision for the appointment of a female to the Senate of Canada?

In Canada, the federal government has the power to refer questions to the Supreme Court of Canada to clarify legal and constitutional issues. Ernest Lapointe, who was minister of justice in the government of William Lyon Mackenzie King, reviewed the petition and recommended to the federal cabinet that the questions be narrowed down from two to one, relating to the appointment of women to the federal Senate of Canada under section 24 of the British North America Act, 1867 (now known as the Constitution Act, 1867). On October 19, 1927, the cabinet submitted this question for clarification to the Supreme Court of Canada:

“Does the word “Persons” in section 24 of the British North America Act, 1867, include female persons?”

The question for the court was whether women could be “qualified persons” under section 24 and thus eligible to be appointed to the Senate. Ultimately, all five justices held that the meaning of “qualified persons” did not include women. The court interpreted the phrase “qualified person” based on their understanding of the intention of the drafters of the Constitution Act, 1867, despite acknowledging that the role of women in society had changed since that date.

In 1867, women could not sit in parliament. Thus, if there were to be an exception to the practice from that period, it would have to be explicitly legislated. The court held that the common law incapacity of women to exercise public functions excluded women from the class of “qualified persons” under section 24 of the Constitution Act, 1867.

The five women then took the case on appeal to the Judicial Committee of the Privy Council. Since their names were listed on the appeal documents in alphabetical order, Henrietta Muir Edwards was listed as the first appellant, leading to the case being entered as Edwards vs Canada (Attorney General). The Lord Chancellor, Viscount Sankey, writing for the committee, found that the meaning of “qualified persons” could be read broadly to include women, reversing the decision of the Supreme Court.

The unveiling of a plaque commemorating the Famous Five, June 11, 1938. Credit: Wikimedia Commons

The landmark ruling was handed down on October 18, 1929. He wrote that “the exclusion of women from all public offices is a relic of days more barbarous than ours,” and that “to those who ask why the word [“person”] should include females, the obvious answer is why it should not.” Finally, he wrote:

“Their Lordships have come to the conclusion that the word “persons” in sec. 24 includes members both of the male and female sex and that, therefore, … women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly’’.

Similarities between the cases

The core similarity between Edwards vs Canada and Navtej Singh Johar and Others vs Union of India and Others lay in the fact that both essentially raised the question of full legal personage of the two marginalised sections of society, namely gender minority (women) and sexual minority (LGBTQ+). According to John Salmond, a person is any being whom the law regards as capable of rights and bound by legal duties.

Women were not counted as full-fledged persons in Canada before the Edwards judgment. The 1876 British common law ruling was the prevailing law which stated that “women were eligible for pains and penalties, but not rights and privileges’’. So also the antediluvian colonial living fossil – Section 377 of the Indian Penal Code – substantially reduced the full-fledged personality of LGBTQ+ citizens as they were deprived of their right to sexual choice and intimate relations.

They were stigmatised as a criminal tribe due to their sexual orientation and identity. They were denied even the preambular promises of liberty of thought and expression, equality of status and opportunity and fraternity assuring the dignity of the individual. They were ostracised despite the Articles 14, 15, 19 and 21 of the constitution of India. Their rights of life, liberty and pursuit of happiness, the primary natural rights that the social contract of the constitution is bound to safeguard, blatantly violated. The Navtej Singh Johar judgment finally rectified the Himalayan constitutional wrong and, like the Edwards judgment, granted the full personality to an oppressed segment of the citizenry. The petitioners in the Navtej Singh Johar case – Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath and Keshav Suri – have become India’s ‘Valiant Five’.

Originalist approach vs living tree approach

The conspicuous similarity between these two cause célèbres is that both encountered the question of originalist approach vs living tree approach in the interpretation of the constitution. To arrive at his conclusion, Viscount Sankey, in the Edwards case, proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada:

“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a constitution to Canada. Like all written constitutions it has been subject to development through usage and convention…’’

From this, the approach became known as the living tree doctrine which requires “large and liberal” interpretation of the constitution.

In Suresh Kumar Koushal and another vs NAZ Foundation and others (2013), the Supreme Court of India, like the Supreme Court of Canada in Edwards case, took an originalist view. In Suresh Kumar Koushal, the Supreme Court of India overturned the Delhi high court case Naz Foundation vs Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. The Originalism is a way to interpret the constitution’s meaning as stable from the time of enactment, which can be changed only by the amending procedure as set out in the constitution itself. Originalists seek one of two alternative sources of meaning:

  1. The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.
  2. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists such as Antonin Scalia, American Supreme Court judge and the main exponent of Originalism, are associated with this view.

In Suresh Kumar Koushal, the Supreme Court bench of Justices G.S. Singhvi and S.J. Mukhopadhaya subscribed the Originalist conviction and held that it is the parliament that should debate and decide on the matter rather than a liberal interpretation by the Supreme Court.

But with the Navtej Singh Johar judgment, the Supreme Court of India, like the Privy Council in the Edwards judgment, has adopted a ‘living tree approach’ in the interpretation of the constitution and its soul, fundamental rights. It is categorically signalled that the constitution is a living tree that grows with changing times rather than a lifeless statue that could be remoulded only by its sculptor. Let the ‘living tree’ emit oxygen for the citizenry as it has done in Navtej Singh Johar judgment.

Faisal C.K. is an independent researcher.