The Directive Principles of State Policy: An Analytical Approach – I: Conceptual Foundations

Part IV of the Constitution – containing the Directive Principles of State Policy (DPSPs) – has enjoyed a checkered history. Framed as a set of non-enforceable political prescriptions that the State has a “duty” to apply in the making of laws, it began life in the 1950s completely sidelined by the Courts. In 2014, however, virtually every socially-oriented constitutional or statutory judgment (and most Part III judgments as well) of the Courts contains an obligatory reference to the DPSPs. Quite often, this invocation is mere window-dressing, and doesn’t actually turn the case one way or another. Equally, there are times when it is clear that the DPSPs are playing an important role in the outcome of a case. The somewhat cavalier manner with which the Courts treat the DPSPs bears obvious similarities with Article 21: a boundlessly wide tent, floating untethered from the text and structure of the Constitution, which can accommodate whatever transitory judicial preference of a particular bench on a particular day.

Admittedly, it is too late in the day to go back to the position that Mr. Seervai advocated rather persuasively: the DPSPs, explicitly stated to be non-enforceable, ought to play no role whatsoever in constitutional adjudication. Given that they play some role, however, how ought they to be understood in a way that maintains fidelity to the Constitutional text and structure, and explains precedent adequately? In this series of posts, we will attempt to reconstruct the Supreme Court’s DPSP jurisprudence in a way that answers to those concerns.

A quick look at Part IV suggests a conundrum for interpreters. There seems to be no coherent principle that undergirds and explains the place of the DPSPs in the constitutional scheme. Social-democratic prescriptions about equitable sharing of natural resources and equal pay for equal work rub shoulders with the uniform civil code and the prohibition of cow slaughter. A reading of the Constituent Assembly Debates indicates that often, a principle that the framers were divided over, one which could not carry enough support in the Assembly to become a fundamental right, was relegated to Part IV as a way of appeasing its proponents.

This explains much. Over time, however, by focusing on some of the DPSPs to the exclusion of others (especially Articles 38 and 39), the Courts (primarily basing themselves upon Granville Austin’s image of the two wheels of a chariot), have imposed a pattern upon the seemingly haphazard DPSPs. They have theorised that Part IV comprises of “goals”, and Part III contains “rights” that the government must respect in pursuit of its goals (Kesavananda Bharati is perhaps the most famous case that posits this theory). This – according to the Courts – is the a priori distinction between Part III and Part IV, which ought to inform the judicial approach to issues involving fundamental rights and DPSPs.

In its own way, it is a familiar distinction. For instance, Ronald Dworkin argues that goals are particular end-states in the distribution of resources, while a right is something that the government is not permitted to infringe in its pursuit of its chosen goals. Yet the distinction is question-begging. What makes something a right or a goal? As Dworkin himself observes (see his Taking Rights Seriously), it depends on the constitutional scheme and the legal framework of the polity in question. Providing adequate nutrition to all its citizens can be framed as a goal, but it can equally well be framed as an individual right to food or health (and the South African Constitution does so). The goals/rights, or ends/means distinction, therefore, needs something else to motivate it.

There is another, equally obvious distinction. Part III embodies civil/political (or “first generation” rights), whereas Part IV enshrines socio-economic, second-generation guarantees. Yet this, again, is simply labeling. What is the relevant conceptual difference between these two categories, which would justify treating them differently in a Constitution? The civil/political and socio-economic distinction tracks another, deeper distinction, however, that does have a conceptual history to it: the difference between negative and positive rights.

In political theory, the difference is conceptualized in the following manner: first, negative rights involve freedom from governmental (or private) coercion that would prevent an individual from doing what she is otherwise minded to do; positive rights requires the government to take action in order to provide an individual something she cannot get for herself. Secondly – and relatedly – negative rights do not require policy choices; positive rights, on the other hand, directly implicate economic prioritization and budgetary allocations – i.e. “a broad redistribution of society’s resources”. The first distinction provides a theoretical ground for arguing that only negative rights are rights at all, properly called, since in a free society, the only form of protection that individuals should be entitled to is protection against coercion. The second provides a slightly more practical argument for the proposition that, whether or not socio-economic rights are rights in theory, since they involve the kind of economic and financial balancing that lies within the competence of the government, they ought not to be made available to individuals as enforceable claims in the manner of negative rights.

On a closer analysis, however, both these distinctions break down. It is controversial whether coercion is a meaningful way to separate categories of rights. As Cohen, Sen and others have argued, the distinction is premised on the distinctly non-neutral and ideologically coloured notion of freedom as non-interference. Even conceding that it is, however, so-called negative rights involve as much governmental action as positive rights. The right to property, for instance, is meaningless without an institutional system that involves a police force to prevent trespassing, and a legal structure to punish it when it does happen.

There is another way, furthermore, in which the coercion and action/inaction framework dissolves. Consider Cohen’s famous example: I wish to travel from Place A to Place B, but lack the money to buy a train ticket. I board the train nonetheless, and at some point, after the ticket-collector has found that I do not possess a ticket, the coercive apparatus of the State will be called upon to remove me from the train, and prevent me from traveling to where I want. In this way, Cohen argues, my lack of money violates my freedom of movement, even if freedom is defined strictly as absence of coercion. Poverty, thus, is as much a violation of negative liberty as is the State preventing me from free movement by placing me under house arrest.

The action/inaction dichotomy directly leads into the second alleged distinction: setting up and preserving a legal and institutional regime for the protection of negative liberties clearly involves economic and budgetary policy choices in much the same way as guaranteeing to all persons adequate food, or access to health. Thus, as the ICESCR Committee pointed out, “courts are generally already involved in a considerable range of matters which have important resource implications.” Cecil Fabre’s illustration of how an effective right to vote requires an effective system of voting, which in turn would implicate the government in making choices about allocation of manpower, resources and so on, nicely illustrates the argument. The negative/positive distinction, therefore, is unhelpful and ought to be discarded.

Lastly, it may be argued that positive rights are inherently vague and open-ended, and therefore only fit for resolution through the political process. This objection, however, fails for reasons of under-inclusiveness and over-inclusiveness. Public interest limitations on negative rights, found in Constitutions all over the world, including the Indian, are as open-ended as positive rights. On the other hand, the ESCR’s General Comment 12, on the right to food, is the model of clarity and precision in its definition of the right:

“… the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture.”

Therefore, in purely conceptual terms, there is good reason to deny a stand-alone distinction, independent of the particular framing history of the Indian Constitution, between Parts III and IV. Indeed, the history of the right to education – which moved from the Directive Principles to the Fundamental Rights, becoming Article 21A via a Constitutional amendment at the suggestion of the Courts, suggests the inherent fluidity of the distinction, and lends support to the proposition that, ultimately, the distinction is purely contingent and historical.

Having dealt with a potential red herring – a false dichotomy between negative, civil/political and positive, socio-economic rights – we have now cleared the ground for an investigation into the actual text, structure and drafting history of the DPSPs, and their relationship with fundamental rights, free of the assumptions that Courts have sometimes sought to impose (assumptions that, as we shall see, play little or no role in their actual jurisprudence). This investigation, and the examination of precedent in its light, shall be the subject of the next few posts.


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The Supreme Court’s Make-Up Artists Decision and its Discontents

A couple of weeks ago, in a judgment that made headlines, the Supreme Court struck down a clause of the Cine Costume Make-Up Artists and Hair Dressers Association bye-laws that prohibited women (and anyone who had not spent five years in the State of Maharashtra) from becoming members. The clause effectively operated as a ban on women being employed as make-up artists in the 2 billion-dollar film industry, and there is no doubt that it was a highly regressive, patriarchal and discriminatory provision. Nonetheless, for many reasons, the judgment of the Court is deeply problematic, and requires close scrutiny.

Before the Court, it was argued that the impugned clause violated Articles 14, 19(1)(g) and 21 of the Constitution. Ordinarily, this would be a constitutionally impeccable argument. There was, however, one problem: the Association is a private entity, and private parties are not ordinarily subject to Part III of the Constitution. The petitioner’s claim was, in effect, a claim for the horizontal enforcement of rights.

It is clear that under the present constitutional regime, the Court could not have brought the Association under the ambit of Part III by holding it to be “State” under Article 12. Under the Pradeep Kumar Biswas test, a private entity must be under the “functional, financial and administrative control” of the State for Article 12 to apply, and those stringent conditions were not fulfilled in this case. An alternative approach, which holds that private bodies performing public functions (in this case, employment) are subject to public law obligations, remains embryonic in Indian Constitutional Law. While impliedly endorsed by Justice Mohan in his concurring opinion in Unnikrishnan, it has never been explored in detail by the Court. The Court chose not to explore it here either, holding categorically that Article 12 was not attracted, and leaving it at that (paragraph 38).

Instead, the Court reasoned as follows: it noted that the Association was a registered trade union under the Trade Unions Act of 1926. Under the Act, registered trade unions could not frame rules that were inconsistent with the Act. In particular, the Court observed that Section 21 of the Act, which stipulated the rules for membership of the Trade Union, stated that “any person who has attained the age of fifteen years may be a member of a registered Trade Union…” (rather irrelevantly, the Court also referred to Section 21A, which provided for the disqualification of office-bearers of the Trade Union).

The Court then noted: “The aforesaid provisions make it graphically clear that Section 21A only prescribes the age and certain other qualifications. The aforesaid statutory provisions do not make a distinction between a man and woman, and rightly so.”

Presumably, this is a typographical error, and the Court was referring to Section 21, not 21A (because there was no dispute at all about the disqualifications of office-bearers).

On the other hand, Clause 4 of the Association’s by-laws stated:

Membership of the Association shall comprise of Make-up men, Costume men, and Hair Dressers who were admitted as members by the Association…”

Clause 6 stipulated the five-year Maharashtra domicile requirement.

The Court then held: “Clause 4, as is demonstrable, violates Section 21 of the Act, for the Act has not made any distinction between men and women.”

In other words, because under Section 21, age was the only qualification for membership of a trade union, the Association’s by-laws, by prescribing the additional requirements (on the basis of gender and domicile) violated the statute, and were therefore liable to be struck down.

There is, however, one significant flaw in the Court’s reasoning, and that is the wording of Section 21. In relevant part, that Section reads:

“Any person who has attained the age of fifteen years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary…”

On a simple grammatical reading, it is abundantly clear that the Trade Union can make any set of rules over and above, or opposed to the fifteen-year age requirement. The Court completely ignores the latter part of the sentence. Even worse, it reads it out altogether: it is as if those eleven words never existed.

Apart from being a case of bad statutory interpretation, the conclusion is utterly ludicrous, because on the Court’s reading of the statute, any person above the age of fifteen has a statutory right to become a member of any trade union registered under the Trade Unions Act. On the court’s reading of the statute, a factory-owner would have the right to become a member of his factory’s trade union. This would be a… strange outcome.

The Court then notes:

“It is clear to us that the clause, apart from violating the statutory command, also violates the constitutional mandate which postulates that there cannot be any discrimination on the ground of sex. Such discrimination in the access of employment and to be considered for the employment unless some justifiable riders are attached to it, cannot withstand scrutiny. When the access or entry is denied, Article 21 which deals with livelihood is offended.”

 While the constitutional mandate does indeed postulate that there cannot be any discrimination on the ground of sex, the Court forgets that the constitutional mandate is addressed to the State, as is Article 21’s guarantee of the right to livelihood (as part of the right to life). The exception, of course, is Article 15(2), which proscribes horizontal discrimination in certain specific areas. Previously on this blog, it has been argued that, in light of constitutional history, Article 15(2) ought to be given an expanded interpretation, but the Court does not engage in that analysis here. It blithely assumes that the non-discrimination and Article 21 guarantees are applicable to private associations, and closes by holding:

“A clause in the bye-laws of a trade union, which calls itself an Association, which is accepted by the statutory authority, cannot play foul of Article 21.”

 Reading the Court’s opinion in its best light, it would seem that the proposition of law which emerges is that a private association registered under a statute cannot violate constitutional norms in its membership requirements. The logic would be that statutory registration amounts to State sanction, and the State cannot sanction or endorse an activity that runs directly contrary to the provisions of the Constitution (something akin to the American case of Shelley vs Kraemer, where the Court refused to enforce a racially-restrictive covenant, on the ground that that would amount to enforcing an unconstitutionality, while holding that it had no power to strike down the private covenant). This might be understood as a case of indirect horizontality, forms of which are prevalent in jurisdictions such as South Africa and Germany. If it is a case of indirect horizontality, though, that argument needs to be spelt out and provided a proper analytical foundation, which the Court fails to do.

The argument from indirect horizontality, however, runs into a significant problem: the precedent of the Zoroastrian Cooperative Case, in which a housing society registered under the Cooperative Societies Act was permitted to discriminate on the basis of religion, on the grounds of the freedom of association. Previously on this blog, we have argued that Zoroastrian Cooperative is better understood not as an Article 19(1)(c) freedom of association case, but as an Article 29 minority-rights case, but here the Court makes no effort to distinguish what appears to be directly contrary precedent, and does not even acknowledge the tensions between Article 19(1)(c)’s guarantee of the freedom of association, and enforcing membership requirements on private associations.

In fact, the justification that we have provided above leads to some strange conclusions. Suppose I want to start a society for the Protection of the Rights of Besieged Men, and have it registered under the Societies Registration Act (or analogous legislation). Membership is limited to men. Is that a violation of the sex-discrimination clause of the Constitution? Or suppose I want to start a society for the Protection and Promotion of the Jedi Faith, under the by-laws of which, members must forswear prior allegiance to all organised religions, and embrace the Jedi faith. Will that also be a violation of the Constitution’s religious non-discrimination clause? The tensions between the freedom of association and non-discrimination are acute, and require a scalpel rather than a sledgehammer. Many jurisdictions have civil rights legislation that try to draw a balance by prohibition discrimination, for instance, within the workplace, but not in private associations like the ones described above.

In the absence of an overarching civil rights act in India, admittedly, the judiciary is tasked with the responsibility of interpreting laws and constitutional provisions to avoid egregious discrimination with very real consequences, such as the impugned clause in the Make-Up artists case. But in doing so, it ought not to lose sight of grounding its decisions in defensible legal reasoning. In the Make-Up artists case, the Court spends reams of pages quoting international declarations, feminist literature, and previous cases declaiming gender equality in ringing phrases, but – as we have seen – spends no time in working through the tangled legal issues that actually arose for its consideration. As a result, we have a wonderful outcome, but no reasoning. That makes for good headlines, but bad law.


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One Small Step Towards Abolition?

On 31st October, the High Court of Delhi – writing through Justice Muralidhar – decided a death penalty reference that can have (potentially) significant consequences for the future of capital punishment. The appellant had been convicted for the rape and murder of a three-year old child, and been sentenced to death by the trial court. On 17th April, 2014, the High Court affirmed the conviction. With respect to the award of the death penalty, the Court rejected the notorious “balancing test” of Machi Singh (which was contrary to precedent and has been questioned by the Supreme Court subsequently), and held that one important aspect to consider was the possibility of reform and rehabilitation for the criminal.

So far so good. Until now, however, this assessment – of whether or not the convict could be reformed/rehabilitated – was being taken by judges. Reading death penalty cases, it becomes evident that this assessment would rarely be based on objective factors. In most circumstances, it would be a snap judgment, depending upon the judge’s intuitions about the gravity or severity of the crime, whether or not the convict had exhibited remorse, and a number of other factors of this sort. The problems with this approach had already been acknowledged by the Supreme Court before. In Anil vs State of Maharashtra, a 2014 judgment, the Court had noted:

“… the State is obliged to furnish materials for and against the possibility of  reformation and rehabilitation of the accused. Facts, which the Courts, deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already  stated, calls for additional materials.”   

Focusing upon this, in its 17th April order, the Court directed the government to assign a probation officer (PO), with the task of preparing a report, devoted to the following two questions:

“(i) Is there a probability that, in the future, the accused would commit
criminal acts of violence as would constitute a continuing threat to society?
(ii) Is there a probability that the accused can be reformed and rehabilitated?”

For the purposes of greater objectivity, the Court laid down three further guidelines that the PO would take into account:

(a) enquire from the jail authorities and seek a report as to the conduct of the accused while in jail.

(b) meet the family of the accused and local people [to] seek their inputs on the behavioural traits of the accused with particular reference to the two issues highlighted.

(c) seek specific inputs from two professionals with not less than ten years’ experience from the fields of Clinical Psychology and Sociology.”

Following the directions of the Court, the report was prepared, “based on a personal interview with the Appellant in Tihar Jail, Delhi, interviews with his family members and neighbours  in his native place in Siwan, Bihar, the report of the local panchayat and a report from the Police Station (PS) Basatpur. The SIR also incorporates inputs of the Clinical Psychologist, Psychiatric Social Worker and Superintendent of Jail, Tihar as well as the assessment by the Medical Board of the Institute of Human Behaviour and Allied  Sciences („IHBAS‟).”

It was found that, for the most part, the report was positive. Even though the convict had exhibited no outward signs of repentance, the PO report noted that, based on its findings as a whole, repentance “needs to be developed through reformative and corrective services and it will take a long process for reformation and reintegration into the society.” This was affirmed by the medical report, according to which “there is nothing to suggest that the index client cannot be reformed and reintegrated and reformative process through social correctional measures.”  Accordingly, the sentence of death was commuted to one of life imprisonment.

There is a shift, therefore, from a situation in which the potential for reformation and rehabilitation is judged from the perspective of two or three judges, with their individual biases, to one in which a whole host of stakeholders, who have had an intimate connection with the convict, are brought into the equation, with the requirement of consulting medical panels adding an extra layer of objectivity to the enquiry. A positive reference from any one or more of those bodies would create enough of a doubt in the Court’s mind to – following Santosh Kumar Bariyar’s “principle of prudence” – refrain from confirming the death penalty.

In the long road towards abolition, this is perhaps one small – yet hugely significant – step.

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Book Review: Kalpana Kannabiran, “Tools of Justice”

Tools of Justice: Non-Discrimination and the Indian Constitution, Routledge 2012, available for purchase here.

This is a densely-argued, interdisciplinary work, focusing on non-discrimination under the Indian Constitution. The overall framework of the book centres upon Articles 15 and 21, and the link between discrimination and the deprivation of liberty. The materials that Kannabiran works with are historical, sociological, anecdotal and legal. Discrimination is examined from the perspective of numerous constituencies: disability, caste, sex, ways of life (adivasis/tribals), religion, and sexual orientation.

Clocking in at 450 pages, an overall survey in a brief review is close to impossible. What I will focus upon is a few of the key, important themes that emerge out of the text.

(i) Norm and Nature: Throughout the course of the book, Kannabiran demonstrates how the Indian judiciary, when examining discrimination cases, operates with a set of political and ideological norms, which it considers as natural. A claim of discrimination will succeed if the Court perceives that the differential treatment violates this norm, and it will fail if the Court is of the opinion that it coheres with the norm. The starkest examples are present in cases involving sex-determination. Kannabiran shows how the Court’s judgments are repeatedly driven by a set of ideas about the role that men and women do – and ought – to play in society, as well as their aptitudes and talents: women’s primary role lies in the domestic sphere, as carers, while the role of men is to actively participate in the exchange economy. Therefore, for example, where workplace regulations attach disabilities (loss of job, downpayment etc.) to pregnancy, they have been upheld by the Courts (as reinforcing the norm of the separate spheres occupied by men and women).

In other realms, it is more difficult to isolate the norm, as well as its political foundations, perhaps because the norm has become more deeply ingrained in our consciousness as natural. For instance, in the case of caste-based reservations, the Supreme Court has justified reservations on the ground that they fulfill a vision of substantive equality as opposed to mere formal equality (N.M. Thomas), and has then sought to balance the demands of substantive equality with the goal of maintaining efficiency in the civil services (Article 335 of the Constitution). The unarticulated major premise underlying this set of cases is that “efficiency”, as a normatively desirable goal, has certain requirements, which are best fulfilled through “merit-based” selection procedures. Kannabiran skilfully interrogates the assumptions that ground this idea of merit; in this way, what comes out is the fact that understanding reservations as a departure from the basic requirement of efficiency-through-merit, which must then be justified by the principle of substantive equality (and thereby putting limits on the quantum of reservations), is simply one, consciously-chosen framework that automatically defines and restricts the manner of arguments that can be made. This comes out with particular clarity in the Balaji decision, where Kannabiran points out that despite studies showing that reservations had no discernible impact on efficiency, the Court was so firmly in the grip of this belief, that it simply dismissed the findings, and created a legal fiction to the effect that reservations were simply bound to have an effect on efficiency, whatever the studies actually said.

Similarly, in disability law in the workplace, the norm is that of the “able-bodied worker”; the Courts never challenge that assumption that links the actual needs of the workplace (and associated concepts of efficiency, profit-making etc.) and the requirement of being able-bodied, and therefore miss the fact that (quoting Minae Inahara) “[the] binary categorical system which defines disability in opposition to an able-bodied norm and suggest[s] that the disabled body is a multiplicity of excess which undermines this able-bodied norm… the complexity of disabled ability does not fit into able-bodied notions of ability.” 

(ii) The Transformative Constitution: A crucial point that Kannabiran makes at the beginning of her work, and returns to repeatedly, is that the interpretation of constitutional provisions cannot be untethered from its historical context, and the goals and values that the framers were seeking to achieve. Previously on this blog, we have discussed extensively the interpretive issues that arise in the case of a “transformative Constitution” – i.e., a Constitution that is written with the express goal of transforming the political institutions or values of a society. Kannabiran points out that the purpose of the Constitution was to create “an order that displaces the unfreedoms internal to the society as well as the unfreedom of colonization… the constituent assembly, in recognition of the fact that the constitution was being introduced in an unequal and discriminatory society, debated and drafted the constitution with the explicit purpose of dislodging the status quo.”

This has important interpretive implications for the interpretation of colonial-era statutes, as well as questions of clashes between fundamental rights and a claimed public morality (where the argument is to restrict or narrow the scope of fundamental rights so that they cohere with public morality – an argument made in Naz Foundation). For instance, it is questionable whether colonial-era statutes, based upon an entirely different set of values, should enjoy the presumption of constitutionality; and, as Kannabiran points out, it becomes rather problematic when the Court, in some of its judgments, invokes the authority of Manu as a “lawgiver”, given that, arguably, one of the goals of the Constitution was to reverse the hierarchical and stratified nature of society, which, in theological imagination, is believed to owe its existence to the edicts of Manu.

This issue, however, requires far more historical excavation than is provided in the book. It is trite wisdom that no period, however revolutionary, marks a complete break with the past. Every Constitution has transformative as well as conservative elements. For instance, in the recent Tax Tribunals judgment, the Court was probably right when it held that the “Westminster model of governance”, in the specific context of judicial independence and the separation of powers, was a continuation from colonial times – and that therefore, the interpretation of constitutional provisions setting out the structures of governance would be enriched by turning to common law. Thus, we must be wary of too facile an invocation of the “transformative Constitution”: each interpretive claim must be backed up by rigorous historical reasoning.

(iii) Historical retrieval: The most interesting aspect of this book (for me) is Kannabiran’s challenge to the dogma that concepts of equality, anti-casteism, women’s rights, and so on, are imported Western concepts, and that in interpreting the Constitution, due regard must be paid to indigenous ideas of nature and society. There are two ways of responding to this claim, both of which were invoked by critics of the Supreme Court’s Koushal judgment last year. One is to argue that these “traditions” ought to play no role in constitutional interpretation; the constitution has explicitly committed itself to political liberalism through its bill of rights, judicial review and other such substantive, as well as structural, provisions. The other is to take the claim from tradition head on, and argue that it rests upon a narrow and cribbed reading of Indian history, religion and philosophy. In Tools of Justice, Kannabiran takes the latter tack. She argues that throughout Indian history, there have been powerful, dissenting Indian voices against the caste system, inequality, sexual subordination, and so on. Drawing upon the Bhakti movement, Kabirdas, Periyar, and many others, she argues that if, indeed, we are going to take into account Indian history, religion and philosophy when we interpret the meaning of our Constitutional guarantees, then this particular history has as much a claim to our attention as its opposite, dominant strand.

In his six modalities of constitutional interpretation, the legal scholar Philip Bobbitt lists tradition as one of them. In American constitutional jurisprudence, the Supreme Court treats as suspect any legislation that impinges upon rights that are “deeply rooted in American history and tradition” (e.g., the right to jury trial). Insofar as tradition is – and has been – a tool of interpretation invoked by the Indian Courts, Kannabiran argues for a radical re-reading of that very tradition.

These three themes, I think, make Tools of Justice stand out as a highly important and relevant work of recent times. I do feel, however, that often the book falls short of the goals that it lays out in its theoretical and methodological framework. It presents detailed sociological and historical analyses of caste and sex discrimination, for instance, but does not tell us – or at least, does not adequately tell us – the implications that would have for constitutional interpretation, or how it would change the outcome in specific cases. The idea of weaving in sociology and history into constitutional interpretation is a laudable one; but there must also be a distinct, legal peg on which to hang them. Or, in other words, there should be legal, interpretive tools – tools within the legal tradition that can justify and create a space for sociology and history to enter into our analysis of constitutional provisions and cases. It is in this respect – that is, in linking sociology, history and law into one, coherent interpretive scheme that is legally defensible – that Tools of Justice sometimes falls short. But for all that, it is a book that repays close study, and is highly recommended.

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Foucault, Rubenfeld, Naz Foundation, and Article 15(1)

In Naz Foundation vs NCT, the Delhi High Court famously held that the word “sex” in Article 15 included “sexual orientation” as a prohibited ground of discrimination. Unlike the South African Constitution, there is no support for this proposition within the four corners of the text. What, then, justifies this interpretation? Clearly, it must be shown that sexual orientation is in some way analogous to the stipulated Article 15 grounds: religion, race, caste, sex and place of birth. One popular argument is that Article 15 – and, more broadly, Part III of the Constitution, through other provisions such as Article 25 – protects personhood: i.e., it stipulates that one’s equal moral membership in society (or, one’s right to be treated with equal concern and respect) must not be made contingent upon those characteristics most fundamental to one’s sense of personhood, or the most basic markers of one’s identity: religion, race, sexual orientation etc.

The argument from personhood is a popular one. In the United States, it was used to uphold abortion laws in Planned Parenthood vs Casey,  and subsequently invoked by Justice Kennedy in Lawrence vs Texas, the American Supreme Court case which held that criminalising homosexuality is unconstitutional:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

In National Coalition for Gay and Lesbian Equality vs Minister of Justice, the case which struck down South Africa’s sodomy law, the Constitutional Court – speaking through Ackermann J., held:

The group in question is discriminated against because of the one characteristic of sexual orientation. The measures that assail their personhood are clustered around this particular personal trait.”

There is, of course, something intuitively attractive about the personhood argument. It is, for one, closely connected with other, similarly attractive ideals, such as autonomy and dignity. The idea that there is a core set of beliefs, practices and world-views that define who a person is, and must therefore be held inviolable and subjected to no interference by the State, seems a powerful one, and speaks deeply to our conceptions about what freedom means.

There may, however, be good reasons not to advocate a personhood-based justification for Naz Foundation, or, for that matter, for the philosophy underlying Article 15 and/or Part III in too facile a manner. One set of arguments to this effect are grounded in the work of the philosopher Michel Foucault.

In his three-volume series, The History of Sexuality, Foucault argues against what he called the “repressive hypothesis”; i.e., the idea that, in the eighteenth and nineteenth centuries, sexuality was systematically “repressed” through a practice of official censorship, legal prohibition (including the criminalisation of sodomy), and the dull compulsion of social relations – and that this repression is only now beginning to be shaken off. Foucault contends, on the other hand, that a closer look at historical evidence demonstrates that the eighteenth and nineteenth centuries witnessed a proliferation of discourses about sexuality:

“Under the authority of a language that had been carefully expurgated so that it was no longer directly named, sex was taken charge of, tracked down as it were, by a discourse that aimed to allow it no obscurity, no respite… rather than a massive censorship, beginning with the verbal proprieties imposed by the Age of Reason, what was involved was a regulated and polymorphous incitement to discourse.”

This happened through numerous practices of surveillance, taxonomy, the re-classification of sins as medical aberrations, religions confessions, and so on (the complete argument may be found in chapters two and three of Volume 1). Foucault then lists four ways in which there was an “incitement” to sexualised discourse. In the second category, which he calls “a new specification of individuals”, he deals with homosexuality. In an extended passage, that deserves quoting, Foucault observes:

“As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. Nothing that went into his total composition was unaffected by his sexuality. It was everywhere present in him: at the root of all his actions because it was their insidious and indefinitely active principle; written immodestly on his face and body because it was a secret that always gave itself away. It was consubstantial with him, less as a habitual sin than as a singular nature. We must not forget that the psychological, psychiatric, medical category of homosexuality was constituted from the moment it was characterized – Westphal’s famous article of 1870 on “contrary sexual sensations” can stand as its date of birth – less by a type of sexual relations than by a certain quality of sexual sensibility, a certain way of inverting the masculine and the feminine in oneself. Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”

But this is precisely the personhood argument writ small. What Foucault is describing (and perhaps, at the same time, warning us against) is the dangers of allowing a set of acts or practices to become the full measure of human beings.

And because of this, Foucault goes on to write, “scattered sexualities rigidified, became stuck to an age, a place, a type of practice.” What is crucial to understand, ultimately, is that subordination must depend, primarily, upon classification and definition: and there is no more effective way of classifying than by holding that a certain set of actions define, or constitute, what a person is. Seen this way, personhood suddenly becomes less of an emancipatory tool, and more of a trap. It also, as Foucault points out, both ossifies and excludes: by holding that one, defined set of practices constitutes the core, immutable being of an individual, it denies the possibility of the practice itself being malleable (for instance, by excluding other forms and conceptions of sexuality) and open to change, as well as denying the same to the “individual”.

We may pause here to notice a moment of irony: in Koushal, when the Supreme Court overturned Naz Foundation, it rejected the Article 14 argument on the ground that S. 377 classified between acts and not between persons. This reasoning was excoriated on the ground that the Court simply ignored how central sexuality and sexual acts are to persons. But, as Foucault points out here, it is the acts-to-persons shift that is precisely what we should be wary about embracing too uncritically!

The application of the arguments in A History of Sexuality to personhood-based claims in constitutional law has not gone unnoticed. In a 1989 article called The Right of Privacy, Jed Rubenfeld subjected personhood-based definitions of privacy to a Foucauldian critique. As Rubenfeld reads Foucault:

“In Foucault’s description, the decision to give medical treatment to homosexuals, which became institutionalized medical practice in the nineteenth century, in fact created the “disease” of homosexuality. It generated a division be-tween homosexuals and heterosexuals that had never been absolute before, and at the same time created new institutional practices through which individuals would more and more sharply identify themselves, be identified, and be processed as homosexuals.

In a brilliant series of passages, Rubenfeld then explains the connection between classification and subordination, and how the personhood argument – by engaging in the former – undercuts its own emancipatory potential by facilitating the latter.

“Those who engage in homosexual sex may or may not perceive themselves as bearing a “homosexual identity.” Their homosexual relations may be a pleasure they take or an intimacy they value without constituting - at least qua homosexual relations - something definitive of their identity. At the heart of personhood’s analysis is the reliance upon a sharply demarcated “homosexual identity” to which a person is immediately consigned at the moment he seeks to engage in homosexual sex… thus, even as it argues for homosexual rights, personhood becomes yet another turn of the screw that has pinned those who engage in homosexual sex into a fixed identity specified by their difference from “heterosexuals.

Of course, it might be argued that there is no necessary connection between classification and subordination, and that identities, if put to emancipatory purposes, need not become the trap that Foucault describes them to be. To that, Rubenfeld says:

These two “moments,” [of classification and subordination] however, are not really distinct. Or rather, if we call them distinct, the impulse toward hierarchy actually precedes and produces the differentiation in identities. Obviously, differences of sexuality, gender, and race exist among us. These are not, however, differences in identity until we make them so. Moreover, it is the desire to count oneself “superior” to another, or even to count oneself “normal,” that converts such differences into those specified identities in opposition to which we define ourselves. To protect the rights of “the homosexual” would of course be a victory; doing so, however, because homosexuality is essential to a person’s identity is no liberation, but simply the flip side of the same rigidification of sexual identities by which our society simultaneously inculcates sexual roles, normalizes sexual conduct, and vilifies “faggots.” Thus personhood, at the instant it proclaims a freedom of self-definition, reproduces the very constraints on identity that it purports to resist. Homosexuality is but one instance of this phenomenon. The same flaw can be shown in the context of interracial marriage: once again, for the parties directly involved, to say that the challenged conduct defines their identity, and therefore should be protected, as-sumes that marrying out of one’s race is in some way the cataclysmic event its opponents pretend; it thus repeats the same impulse toward rigid classification presupposing the discrimination sought to be undone. Interracial marriage should be protected because it is no different from intraracial marriage, not because it is so different.”

A caveat is perhaps important here: this is not, by any means, an argument for “colour-blindness” – i.e., a legal system that ignores socially-constructed markers of identity altogether. Whether we like it or not, it is a simple truism that sexual orientation, race, caste, religion, sex and so on have been historical (and present) sites of oppression and subordination; and that subordination cannot be resolved by now ignoring their existence altogether. This is a well-worn argument in the affirmative action debate in the United States: the key, in reading Foucault, however, is the insight that in attempting to philosophically ground our anti-discrimination law in a manner that is sensitive to historical, group-based injustices, we should not fall into the trap of using “personhood” in a way that only entrenches and rigidifies group markers which – in the last analysis – cannot ultimately be the tools of emancipation.

If personhood is not the basis of Article 15, or other aspects of Part III, then what is? In his article, Rubenfeld advances what he calls the “anti-totalitarian argument“. Continuing within the broad, Foucauldian framework, he argues:

“The distinctive and singular characteristic of the laws against which the right to privacy has been applied lies in their productive or affirmative consequences. There are perhaps no legal proscriptions with more profound, more extensive, or more persistent affirmative effects on individual lives than the laws struck down as violations of the right to privacy. Anti-abortion laws, anti-miscegenation laws, and compulsory education laws all involve the forcing of lives into well-defined and highly confined institutional layers. At the simplest, most quotidian level, such laws tend to take over the lives of the persons involved: they occupy and preoccupy. They affirmatively and very substantially shape a person’s life; they direct a life’s development along a particular avenue. These laws do not simply proscribe one act or remove one liberty; they inform the totality of a person’s life.

Anti-totalitarianism, as a grounding for a right to privacy, is an interesting suggestion; for non-discrimination, it might not work so well. Another option – broadly on the lines of the South African Equality Act, is to simply identify the historic sites of discrimination, and prohibit practices that perpetuate such discrimination (South African hate speech law is expressly based on this premise), without any further assumptions about personhood. In this context, it might also be interesting to see what the Constitutional Assembly Debates have to say about historically-oppressive markers of identity, such as caste and sex, and their remedies for amelioration.

In any event, given the central place occupied by the idea of “personhood” in judicial decisions world-over (including India), this is a debate that will continue; nor is it a purely academic concern, because the philosophical ground if rights is, ultimately, what determines their reach and their limitations.

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Filed under Article 15 (general), Non-discrimination, Sexuality, Sexuality

Bombay High Court on the Right to Declare “No Religion” – and more!

Last week, in a brief and interesting judgment, the Bombay High Court held that Article 25 of the Constitution requires the government to allow persons to declare “No Religion” on governmental forms that require declarations of religion. The petitioners were the members of the “Full Gospel Church of God”, which believes in Jesus Christ, but not (!) in Christianity, or any other organised religion. The Petitioners made an application to the State Government printing press to issue a gazette notification stating that they were not Christians but, rather, belonged to “No Religion”. This application was rejected. Consequently, they approached the Court, via PIL. Their prayer, which the Court quotes in its judgment, was as follows:

That this Hon’ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction thereby directing the respondents to recognise “No Religion” as a form of religion and not to insist on writing/mentioning/specifying/quoting religion in any of its forms or declarations.”

The judgment follows a standard Article 25 framework. It cited precedent for the proposition that the term “religion” under Article 25 is not limited to theistic religions, or religions centred upon a God. Subsequently, it noted:

The right of freedom of conscience conferred upon a citizen includes a right to openly say that he does not believe in any religion, and therefore, he does not want to practice, profess or propagate any religion.”

Since the requirements of stating a religion impinged upon the freedom of conscience of atheists, the Court held that it was unconstitutional, and set aside the order of the government printing press.

So far, so unexceptionable. The Court’s judgment follows the trend in most liberal democracies that have a freedom of religion and conscience clause: the question of what constitutes a religion is for neither the courts or the clergy to decide, but for the individual. The Courts will not inquire into whether an individual’s belief system tallies with any one of a list of approved religions, but will only initiate a prima facie enquiry into the depth and sincerity of her beliefs (whether, for instance, they are central enough to her life to properly be understood as having “religious” significance), and go no further before extending constitutional protection.

If that was all, this would be a fairly straightforward case. But the position is significantly complicated by the fact that throughout its judgment, the Court runs together two very different concepts, as if they were one: the right to declare no religion, and the right against compelled disclosure of religion. In its opening paragraph, the Court states:

The contention of the petitioner is that the State cannot compel any citizen to disclose his religion while submitting forms and/or declarations. The Contention is that the petitioner has a right to claim that he does not believe in the philosophy of any religion and therefore he does not practice or profess any religion. The contention in short is that a citizen can always claim that he belongs to “No Religion”.”

But these are not the same contentions at all! Given that the Court’s own argument is that religion – in the Article 25 sense – need not be theistic at all, the fact that you are stating, on a form, that you belong to “No Religion” does not mean that you are not disclosing your religion – in fact, it means exactly the opposite: you are disclosing your “religion” as being non-theistic or a-theistic.

Even without this strained reading of “religion”, the distinction should be clear. It is the same as the difference, for instance, between asking for “Other” under the “Gender: M or F” category, and asking that nobody should be compelled to declare their gender. A guarantee against compelled disclosure of religion would amount not to an extra box stipulating “No Religion”, but either a removal of the question from forms altogether, or still another Box stating “I Prefer Not to Disclose”.

The distinction is crucial, because admittedly, the freedom to state “No Religion” – asking for parity of treatment between theists and atheists – is an Article 25 claim; but the freedom from compelled disclosure is an Article 21 privacy claim (or, to a lesser extent, an Article 19(1)(a) claim against compelled speech). The privacy claim – unlike the Article 25 argument – is not restricted to religion. It would extend to other features of one’s personality that are as central as religion, and which one could, conceivably, want to keep private: ethnicity, race, sex (perhaps). That is certainly a tenable argument (and the legal scholar Jed Rubenfeld has a brilliant conceptual defence of it here), but would require the Court to go into the niceties of privacy law, and carve out a new concept of privacy, one which goes beyond privacy-as-freedom-from-surveillance (under the Gobind-PUCL line of cases), and privacy as a private right against disclosure of sensitive medical information (the Mr X vs Hospital Z-Sharda vs Dharmpal line of cases). That, again, would be an exciting (and in my opinion, correct) development, but it would require substantially more reasoning and argument than the Bombay HC has engaged in.

The two different issues are conflated throughout the judgment, and even plague the prayer. Under clause (a) of the Prayer, the Court holds:

“We   issue   a   writ   of   mandamus   directing   the Respondents not to compel any individual to declare or   specify   his   religion   in   any   form   or   any declaration.” 

Whereas clause (b):

“We declare   that   by   virtue   of   Article   25   of   the Constitution of India, every individual has right to claim that he does not belong to any religion and that he does not practice or profess any religion.”

It is clear from the context that what the Court meant was only (b), and it (mistakenly) considered (a) equivalent to (b). But it has done both (a) and (b) – provided a guarantee against compelled disclosure, as well as brought atheists on par with theists in terms of disclosure. It will be interesting to see if this issue is subsequently resolved, and if so, in which way.

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The National Tax Tribunals Judgment: Two Interesting Constitutional Issues

Last week, in a judgment that caused quite a stir, the Supreme Court held the National Tax Tribunal Act (and, consequently, the National Tax Tribunal, a centralised adjudicatory for the purpose of deciding and harmonising substantive questions of tax law) to be unconstitutional. I have written a detailed analysis of the judgment elsewhere; in brief, the Court held that the NTT Act transferred the jurisdiction of the High Courts to the Tax Tribunal without ensuring that the Tribunal had sufficient trappings of a Court (e.g., independence and qualifications of its judges etc.) Consequently, it fell foul of the L. Chandra Kumar judgment, and the principle of separation of powers (which the Court rather mysteriously treated as a “constitutional convention”). In a pithy concurring opinion, which is well worth a read, Nariman J. held that it was impermissible to remove the judicial power of deciding substantial questions of law from the High Court.

In this post, I want to focus on two issues thrown up by the judgment, which have been discussed before on this blog, albeit mainly from a theoretical perspective. In its judgment, the Supreme Court relied extensively on the 1975 Privy Council case of Hinds vs The QueenHinds was an appeal from the Court of Appeals of Jamaica. The Jamaican Parliament had passed the “Gun Court Act”, which set up a parallel court system to try certain firearm-related offences. One of the courts it set up was vested with the jurisdiction and powers otherwise enjoyed by the higher judiciary, but its officials possessed neither the independence, and nor the qualifications, that were also enjoyed by the higher judiciary under the Jamaican Constitution. The Privy Council found the act to be unconstitutional, since it violated the principle of the separation of powers between executive and judiciary, which – it held – was a “necessary implication” flowing from the structure of post-colonial, commonwealth “Westminster Constitutions”; it had done so, specifically, by transferring the jurisdiction of the senior judiciary to a parallel court, without guaranteeing the judicial independence of the officers of that court through the rules of tenure, appointment and retirement that applied to regular, senior judges.

In its NTT judgment, the Supreme Court quoted extensively from Hinds. In particular, consider this quotation, which comes after the Privy Council referred to Canadian, Australian and other commonwealth Constitutions (notably, not the Indian):

“All of them [Constitutions] were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive, and judicial power as it had been developed in the unwritten Constitution of the United Kingdom. As to their subject matter, the peoples for whom these new Constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new Constitutions, particularly in the case of unitary states, were evolutionary, not revolutionary. They provided for the continuity of government through successor institutions, legislative, executive and judicial, of which members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.”

Previously on this blog, I’d drawn a distinction between two types of constitutional provisions: conservative and transformative. Most Constitutions are framed at a point of a decisive break with the past, with its institutions and its values, and certain aspects of a Constitution reflect the “transformation” from one set of values and institutions to another; but the past is never a wholly foreign country, and many institutions and structures not only survive revolutionary moments, but are actually entrenched and strengthened in a Constitution, through its “conservative” provisions. A good – albeit schematic – example is that of the American Constitution: its Bill of Rights was (largely) conservative, seeking to guarantee to the American citizens the ancient and deeply-rooted common law rights (e.g., to a jury trial, against unreasonable searches and seizures etc.) enjoyed by British subjects. On the other hand, the Constitution proper was transformative, replacing British monarchy with a system of representative, republican government, exercised through three separate wings of State.

Whether a particular constitutional provision is conservative or transformative, and to what extent it is transformative can have profound implications for constitutional interpretation. For instance, it is sometimes argued that the American Nineteenth Amendment, which guaranteed women the right to vote, transformed not only their voting status, but the entire legal and political framework, based upon the inferior political and legal status of women, that underlay and justified the denial of their right to vote until that moment. Consequently, the Nineteenth Amendment is used by scholars to ground a jurisprudence of sex-equality and non-discrimination within the American Constitution.

Earlier, in the context of India, I’d tried to argue that the transformative nature of Article 15 justified Naz Foundation (Delhi HC’s) reading of “sexual orientation” into “sex”: in providing a universal guarantee of non-discrimination on a set of grounds that were traditionally the sites of social oppression, the Constitution was signaling a shift from a society in which moral membership in society was contingent upon certain unchangeable aspects of one’s personality (race, caste, sex, place of birth, religion) to one in which ever individual was guaranteed equal moral membership, regardless of those unchangeable aspects (and sexual orientation was one such).

In Madras Bar Association, the Supreme Court applies this interpretive technique, by holding that the Constitution’s structural provisions, which set up the institutions and modes of government, are conservative: they entrench the “Westminster model” that was in practice in colonial India, one of whose features was the separation of powers and concomitant independence of the judiciary, guaranteed through appointment processes and security of tenure. Notice that this interpretive technique is based, ultimately, on a historical claim: whether this “Westminster model” was actually made part of our Constitution and, if so, to what extent, needs to be deciphered not merely from the constitutional text, but from a detailed investigation into its history. Unfortunately, the Supreme Court does nothing of the sort: it glibly assumes that the Westminster Model is the model of our Constitution, and decides the case accordingly. This is problematic because the Constitution was, after all, framed in a post-colonial moment, and it requires much argument to demonstrate what set of structures and institutions the framers simply wished to see carry on unchanged into the new republic; however, the use of the analysis itself is promising, and bodes well for the future.

The other paragraph from Hinds that the Court quoted was:

“Because of all this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in a new constitution of a governmental structure which makes provisions for a Legislature, an Executive and a Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government… [and] what is implicit in the very structure of a Constitution on the Westminster Model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the Judicature, even though this is not expressly stated in the Constitution.

Previously on this blog – also in the context of Naz Foundation – we had discussed constitutional structure as one of the bases for interpretation. A structural analysis derives constitutional obligations or principles not from a textual reading of individual or aggregated provisions, but – as the American jurist Charles Black explained – from the “structure and relations… created by the text… and the inferences drawn from them.” Or, to put it in more linguistic terms, there are things that a Constitution says, and there are things that it does not say, but which, when it is taken as a whole, it necessarily implies.

In the Hinds case, much of the argument was historical: separation of powers and independence of the judiciary simply was a basic feature of Westminster governance. But, as we saw in the excerpts, the Privy Council speaks of the “structure” of the Constitution on the Westminster model, and uses the term “necessary implications”. The structural argument is quite straightforward: Constitutions are the fundamental documents creating and detailing the division of powers among the governing institutions in society. A deliberate and intentional division into three separate wings, with specific duties attached to each wing, presupposes that (in the absence of clear contrary evidence), the Constitution requires that the domains that it has marked out for each of the wings be protected from encroachment by the others. Thus, separation of powers and the independence of the judiciary simply come out as structural corollaries of the Westminster-type Constitution.

Something along these lines was the reasoning of the Privy Council in Hinds. Unfortunately, the Supreme Court walked down a very different path: it held that separation and independence were constitutional “conventions”, and accordingly, had to be upheld. This is unfortunate, because of course the meaning of convention is, precisely, that which is not legally enforceable. Thus, the Court’s decision is deeply problematic on this point.

Notwithstanding that, however, these two issues remain fascinating for the debate over constitutional interpretation. The conservative/transformative model is perhaps truest to Indian history, and can serve as an interpretive guide to a number of provisions; and, constitutional provisions flowing necessarily from the structure of the Constitution can have as much legal force as the text itself. The judgment in Madras Bar Association opens the gates for a further decision to engage with and clarify these interpretive points; whether future courts will accept the invitation is something that remains to be seen.

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Filed under Colonial Statutes, Constitutional interpretation, Post-colonialism, Structural analysis