Judicial censorship: A dangerous, emerging trend

Last week, the Indian Express reported that in proceedings before the Supreme Court, the Additional Solicitor General was asked by the bench about how the State planned to regulate “explicit” pictures on condom packets. The case seems to have arisen out of a 2008 order of the Madras High Court (which, unfortunately, does not seem to have been reported, and is not available on the High Court’s website). The Madras High Court had effectively imposed prior restraint upon condom manufacturers by requiring them to have their packets cleared by the Advertising Standards Council of India – which happens to be a private body. The Order had been stayed on appeal, and the Court is now in the process of hearing the appeal on merits. The Madras High Court – this time, through its Madurai bench – was in the news for the second time in the same week, when Justice R. Mahadevan acted upon a PIL and ordered that the study of the Tamil epic “Thirukkural” be made compulsory in schools (this judgment is available on the website, as WP (MD) No. 11999 of 2015).

The thought of the Learned ASG spending the better part of the next six weeks poring over condom packets might justifiably evoke some mirth; and we might ruefully sigh with all those school-going students in Tamil Nadu who now have to sit and swot more than a thousand couplets under compulsion. However, these cases also exemplify an evolving trend in Indian free speech jurisprudence which, if it crystallises, could lead us into a new and dangerous era of speech contraction, and one that is wholly uncontemplated by the Constitution.

Attentive readers are no doubt aware that the Indian judiciary has always had an ambivalent relationship with free speech. Rarely have the courts struck down speech-restricting laws on the touchstone of Article 19(1)(a), choosing instead to uphold them, often on an expansive interpretation of the categories of Article 19(2). The Courts have upheld prior restraint under the Cinematograph Act, government notifications that amount to compelled speech, and law of sedition, etc. However, they have done so while exercising their functions as constitutional courts – i.e., adjudicating upon the constitutional validity of laws or executive acts that are challenged before them. This is a role that is envisaged by the constitutional text. Article 19(2) clearly states that:

“(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Evidently, therefore, a pre-requisite for imposing restrictions upon speech is the existence of a law, which conforms to the categories laid out under Article 19(2). Whether or not a particular law does so is a matter for the courts.

As long as the courts stick to their role, their impact upon the freedom of speech is accordingly limited to deciding upon the validity of existing laws. For that, a law needs to exist in the first place, and secondly, even if upheld, options are not foreclosed: there is always the possibility of repeal through the parliamentary process (in fact, the Press Emergency Powers Act, and the TADA, both of which were upheld by the Supreme Court, were ultimately repealed or allowed to lapse).

The condom case and the Thirukurral case, however, are beats of a very different sort, because they involve the Court imposing restrictions upon free speech in the absence of any existing law, and acting upon a public interest litigation. Nor are they isolated cases. In recent years, a trend has begun to emerge, which may broadly be divided into two kinds of judicial action:

A. The Use of Article 21 as a Sword

The expansion of Article 21’s guarantee of the right to life and personal liberty, in the early years of the PIL era, is now legendary. When it began, the purpose of this reading of Article 21 was to move beyond the perceived limitations imposed by a textual interpretation of the clause, and bring in socio-economic rights into Part III. Critiques of this judicial movement have focused upon how this expansion reached absurd levels, effectively denuding Article 21 of meaning or force. This is undeniable; nonetheless, as long as Article 21 was only used as a shield for individuals against state action, the worst that could happen would be that it would become a rather ineffective shield.

It is quite inevitable, however, that as Article 21 would grow larger and larger, it would inevitably begin to come into conflict with other rights under Part III. The first serious conflict of this sort occurred with R. Rajagopal’s Case in 1994, when privacy and free speech clashed. The clash was sharpened in a series of cases in the late 90s and early 2000s, with the Court framing the issue as one involving a balance between an individual’s Article 19(1)(a) right of speech and expression, and another individual’s Article 21 right to privacy. There is nothing specifically peculiar about this particular clash: the Supreme Court’s interstitial reading of privacy as an aspect of Article 21 is among the more defensible aspects of its 21 jurisprudence, and the clash between free speech and privacy has occupied constitutional courts all over the world.

In 2005, however, in a rather bizarre judgment called In Re Noise Pollution, the Supreme Court, while passing directions on a public interest litigation pertaining to the use of firecrackers, loudspeakers etc. had this to say:

“Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Article.”

To start with, there was absolutely no need for Article 21 to be brought into the picture. Free speech jurisprudence has a well-known category called “time, place and manner” restrictions, under which regulation that do not affect the content of speech, but merely how and in what manner the right to speech is to be exercised, are not deemed to infringe the freedom of expression. The underlying logic is obvious, and does not need explanation. Instead of relying upon this argument, however, the Court decided to use a hugely expanded Article 21 as a sword, and cited the right to a “peaceful, comfortable and pollution-free life” under Article 21 to defeat the freedom of speech under Article 19(1)(a). The problem, of course, is that the phrase “peaceful, comfortable and pollution-free life” is blissfully vague.

This vagueness in the usage of the expanded Article 21 also allowed the Meghalaya High Court, in May last year, to unilaterally gag the local media from reporting on bandhs. The Court observed:

“Hence, we direct that the statements of HNLC or any organization which may disturb the even tempo of day-to-day public life and cause violation of Fundamental rights of citizens in particular under Article 19 and 21 of the Constitution.” 

The perils of using Article 21 to restrict other rights under Part III are exemplified in the ongoing “porn ban litigation” before the Supreme Court (Kamlesh Vaswani vs Union of India), where an expansive reading of Article 21 is cited as one of the reasons for the Court to act upon pornographic websites, in the absence of any law. Notice, however, that unlike privacy, which remains a relatively narrowly defined right, the Kamlesh Vaswani petition draws upon a whole host of constitutional provisions, including the non-enforceable Directive Principles, to justify restrictions upon free speech (the two issues are not isolated – the expansion of Article 21 has been accompanied by increasing recourse to the DPSPs and the “fundamental duties” chapter).

And it is the Madras High Court’s Thirukkural judgment, however, that this form of reasoning reaches its absurd limits. In a series of logical leaps that would ensure a flunking grade in a first-year Legal Methods exam, Justice Mahadevan derives a right to live in an “ordered society”  from the Constitution, takes note of increasing social and cultural degradation, cites extensively from the Thirukkural, and ends by noting that “moral values are more important that other values. Once, the moral values are lost, it is only a matter of time before the person falls, despite possessing all other qualities, which may earn in name, fame, power and money. If Thirukkual is taught with all its avenues and dimensions elborately, the students would be equipped with all the facets of life, the probable problems and the solutions. The couplets about friendship, hard work, good character, patience, tolerance and confidence will guide them through, even the most difficult of times. Thirukkural will give them the inner strength to withstand any storm. Therefore, this Court commends that appropriate action must be taken by the government through the committee which decides the syllabus, considering the noble objective and the demanding situation and finalise the syllabus for the next academic year by including 108 Chapters/ Adhigarams of Thirukkural (Arathupal and Porutpal) in the curriculum of students between VI Standard to XII Standard, keeping in mind that the purpose of education must be to build a nation with moral values.” The Constitution, in other words, has become a charter for compelled speech.

B. Judicial Restrictions under Article 19(2)

The condoms case is an instance of a different kind of judicial censorship: here, the judiciary imposes speech restrictions under Article 19(2) (in this case, the obscenity clause). While obscenity is undoubtedly a ground to restrict speech under Article 19(2), the text of that clause makes it abundantly clear that what is contemplated is a law made by the State, and not (what is colloquially called) “judge made law”. If the State chooses not to restrict “obscene” picture on condom packets, then it is not for the Court to substitute itself in the State’s place, and impose the restrictions through judicial fiat.

What is particularly disturbing is that each of these cases – the condoms case, the Thirukkural imposition, In Re Noise Pollution, and Kamlesh Vaswani – are PILs. In most jurisdictions, individuals approach the Court for relief against State-imposed restrictions on free speech. The PIL, however, seems to be turning us into a jurisdiction where individuals can impose the Court to impose restrictions on speech! Quite apart from the fact that this was never the intention of the PIL, and never the intention of the Constitution, the prospect of the judiciary becoming a forum where people can take PILs aimed at contracting the individual rights under Part III, is a truly frightening one.

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The New Maharashtra Social Boycott Law: Key Constitutional Issues

The final version of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016 contains a few key departures from the draft bill (available here) The most important is the scope of the word “victim” under the definitional clause (S. 2(h)). The Draft Bill defines a “victim” as “any individual who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of social boycott.” The Act limits the definition to “any individual who has suffered or experienced physical or monetary harm or harm to his property as a result of the commission of social boycott.” The removal of the words “mental, psychological, emotional” has the potential to severely restrict the scope of the Act. The primary harm of a boycott is dignitarian in nature – it harms by stigamatising and excluding the boycotted person, and blocking off his access to community resources. In many cases, it will be difficult to show actual “physical” or “monetary” harm, if one was to take these terms literally.

In my view, however, there is enough reason for the Courts to interpret “physical harm” broadly, so as to include dignitarian harms. This is because many of the instances of social boycott that are expressly set out under S. 3 of the Act have nothing to do with physical or monetary harms. Section 3(i), for instance, deals with obstructing an individual from practicing any social observance or custom; 3(iii) deals with social ostracism; 3(iv) talks about shunning a community member “resulting in making the life of such member miserable.”; 3(viiii), inter alia, deals with severance of social relations; 3(xi) deals with preventing the children of the community from playing together with children of specific other families; 3(xv) deals with community expulsion. It therefore seems clear to me that if “physical harm” under S. 2(h) was to be restricted to bodily harm, large sections of the Act would become redundant. Such an interpretation is to be avoided. Consequently, a broader interpretation of the term “physical harm” is to be preferred, one that includes within its scope the kind of harm that all these sub-sections are aiming at curtailing – which is, essentially, harm to dignity.

With that out of the way, let us now examine some key constitutional issues with the Act.

(i) The Relationship between the Act and the Supreme Court ruling in Sardar Syedna Saifuddin

On this blog, we have extensively discussed the judgment of the Supreme Court in Sardar Syedna Saifuddin v State of Bombay (the Dawoodi Bohra case). Recall that in that case, a Constitution Bench of the Supreme Court struck down the 1949 Bombay Prevention of Excommunication Act. The Bombay Act defined “excommunication” as “the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature”, and went on to add that these rights included “the right to office or property or to worship in any religious place or a right of burial or cremation.” The majority held that the Act violated right of religious denominations to manage their own affairs under Article 26(b) of the Constitution, and was not saved by Article 25(2)(b)‘s social welfare or reform exception, since it outlawed even those excommunications that were made purely on religious grounds.

Now, the Maharashtra Social Boycott Act defines a “community” as “a group, the members of which are connected together by reason of the fact that by birth, conversion or the performance of any religious rites or ceremonies, they belong to the same religion or religious creed and includes a caste, sub-caste…” The focus on “religious creed” as an addendum to “religion” (notwithstanding the absence of the word “denomination”) seems to suggest that groups like the Dawoodi Bohras will fall within the definition of “community”. Now, if that’s the case, then there are a number of provisions under Section 3 that rather clearly appear to speak to precisely those situations which, the Supreme Court held in Saifuddin, fell within the protected ambit of Article 26(b). 3(i) penalises obstructing a person from observing any religious custom; 3(ii) does the same for religious rites; 3(v) deals with preventing a person from accessing religious buildings, and 3(vi) does the same for cemetaries and burial grounds (an example that was specifically taken in Saifuddin); and 3(xv), as an omnibus clause, prohibits community expulsion (read: excommunication).

It appears, therefore, that unless one were to hold that a religious creed is not a religious denomination (and thus open the floodgates to threshold litigation over whether a particular group constitutes a creed or a denomination), a significant section of the Boycott Act is unconstitutional under the interpretation of Articles 25 and 26 advanced by the Saifuddin Court. One might argue that the problem of unconstitutionality can be got around in two ways: one, by excluding from the scope of the Act instances of boycotts that are imposed purely on religious grounds. That, however, appears to do violence to the plain language of many of Section 3’s sub-clauses, which are clearly meant to deal with religion-based community exclusion. The second is a similar move – i.e., to limit the operation of the Act to instances that may properly be characterised as a “social boycott” (as the name suggests). Here again, it is doubtful whether this interpretive move is possible, since in the scheme of the Act, the social and religious boycotts are inextricably linked (See Sections 3(i), 3(ii), 3(iii) and 3(viii).

This does not mean that I am arguing for the Act to be struck down – far from it. On this blog, I’ve argued on more than one occasion that the majority in Sardar Saifuddin is incorrect, that Chief Justice Sinha’s opinion is truer to the constitutional scheme, and that the decision should be reversed. A petition asking for just that has been pending with the Supreme Court for the last thirty years. Perhaps a challenge to the Maharashtra Anti-Boycott Act will finally compel the Court to reconsider (what I consider to be) one of its most damaging precedents.

(ii) Implications for the Freedom of Assembly, Association, and the Freedom of Speech and Expression

Clearly, the Act prima facie infringes Articles 19(1)(a), (b), and (c). It is a rather trite proposition that the freedom to associate includes the freedom not to associate. Undeniably, the Act affects the freedom not to associate – in fact, that is the point! Section 3(iv) prohibits the cutting off of social or commercial ties, 3(viii) prohibits instigating others from social, religious, professional or business relations with the boycotted member – and of course, 3(xv) prohibits expulsion. The Explanation II to Section V states that persons who participate in a meeting with a view to impose a social boycott, or who vote for imposing a social boycott, are deemed to have committed an offence. This is a prima facie infringement of Articles 19(1)(a) and 19(1)(b).

There are two possible responses to this. One is to go down the route traveled by the Supreme Court in Venkataramana Devaru and by Chief Justice Sinha in Sardar Saifuddin: i.e., to view the law as furthering the mandate of Article 17’s prohibition of “untouchability”. Previously on this blog, I have argued that Justice Sinha was right in Saifuddin to read “untouchability” in a broad sense, and to include social ostracism and expulsion within its meaning. The issue then becomes a clash between rights under Article 19(1)(a) – (c) and Article 17.

The other response – and one that I am sympathetic to – is to read the “morality” restriction under Articles 19(2) – (4) as referring to constitutional morality. Previously on this blog, I have argued that a combined reading of Articles 15(2), 17 and 25(2) yield something that we can call the “anti-exclusion” principle: the Constitution respects the autonomy of groups and communities until the point (and no further) that their actions lead the exclusion of individuals from access to basic goods (including cultural goods) that are required to lead a dignified life. The Maharashtra Social Boycott law is based upon the anti-exclusion principle, and is therefore a reasonable restriction upon the Article 19 freedoms. I do feel, however, that a few of the sub-clauses of Section 3 will fail this test. For instance, I am not sure whether Section 3(xi) – dealing with preventing or obstructing children of the community from playing with children of specific families – will meet the constitutional threshold.

I do not think that anyone will actually challenge the Social Boycott Law. If that does happen though, it will certainly be an interesting situation!

PS. One interesting aspect is the reference in the Preamble to “fraternity” as a constitutional goal.

PPS. The history of anti-boycott legislation is a long one, of course. It goes back to the 1921 Burma Anti-Boycott Law, and was also proposed by Ambedkar to the Minority Rights Commission. Part of Ambedkar’s proposals were incorporated into the 1955 Protection of Civil Rights Act. Ambedkar discusses the anti-boycott law in Chapter 3 of What Congress and Gandhi Have Done to the Untouchables. 

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Two state laws (and one proposed law) with constitutional implications

Last month, Punjab passed the Indian Penal Code (Punjab Amendment) Act, which inserts a new Section 295AA into the IPC. 295AA, according to reports, prohibits “sacrilege” to the Guru Granth Sahib, and imposes life imprisonment as a punishment. I haven’t yet been able to obtain a text of the law, but if indeed the term used is “sacrilege”, it seems to me that there is a clear over-breadth problem with respect to Article 19(1)(a). It would also be interesting to see whether Section 295AA has a mens rea requirement, since that was precisely the ground on which the Supreme Court upheld Section 295A in Ramji Lal Modi’s Case – reasoning that an “intentional” insult to religious sentiments can cause public disorder, bringing the section within the scope of Article 19(2). It also seems to me that the sentence of life imprisonment is highly disproportionate, and can constitute cruel and unusual punishment, violating Article 21.

On April 11, the Maharashtra Legislative Council cleared a bill to “regulate” dance bars in the State of Maharashtra. The Hindu has an account of some of the stringent conditions imposed by the bill. Apart from the fact that the bill imposes prior restraint by subjecting all performances to the approval of the censor board, it also allegedly prohibits “vulgar” performances. Once again, this seems to be a textbook case of over-breadth under Article 19(1)(a) – quite apart from the fact that the Supreme Court itself, on more than one occasion, has specified that mere vulgarity (if it lacks a “prurient interest”) does not constitute obscenity.

Last week, Maharasthra enacted a law against social boycotts (a previous draft may be accessed here). The law prohibits social boycotts (which are defined in numerous ways, ranging from expulsion from the community, to obstructing regular business and social relations, to obstructing the performance of marriage) within communities. It is therefore applicable horizontally, and – naturally – impacts the freedom of association (which, as the Court has held, carries with it the freedom not to associate). Social boycotts – and legislative action against them – have a long history in India, as we have often discussed on this blog. Starting from school segregation in the late 19th century, to Ambedkar’s movements for water-tank and temple access in the 1920s, to the framing of the Constitution (Article 15(2)), to the Protection of Civil Rights Act, to the striking down of the Bombay excommunication law in 1962 – the history has been a bitter and contested one. Notably, the draft bill specifically prohibits excommunication, thus bringing it into potential conflict with the Dawoodi Bohra judgment. It will be interesting to see if this gets taken to the courts.

(PS. I haven’t been able to obtain the texts of any of these laws – help on this would be most welcome!)

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Sabrimala: Key Constitutional Issues

(The following post is based on my understanding of how oral arguments progressed in Court, since I do not have access to the pleadings. Pointing out of errors would be very welcome)

Arguments in the Sabarimala Temple Entry case are underway before a three-judge bench of the Supreme Court. Based upon the proceedings so far, it is important to consider the following important constitutional questions, which the Court must address in order to arrive at a satisfactory decision.

3Recall that the key issue in the Sabarimala Case is the denial of entry to women between the ages of 10 and 50, into the Sabarimala temple. This denial is justified by Rule 4 of the Kerala Hindu Places of Public Worship Rules, framed under Section 4 of the identically-named Act. Rule 3 prohibits women from entering a place of public worship “at such time during which they are not by custom and usage allowed to enter.” The first issue, therefore, pertains to the vires of the Rule itself.

A. Vires of Rule 3

As I understand it, the Intervenors (Happy to Bleed) have argued that Rule 3 is ultra vires the parent Act, since Section 3 of the Kerala Hindu Places of Public Worship Act specifies that “notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform.” When this argument was raised before the Kerala High Court twenty-five years ago, it was rejected on the ground that women between the ages of 10 and 50 did not constitute a “class” or a “section” of Hindus. This seems to me to be completely fallacious. Read plainly, a “class” or a “section” is constituted by persons sharing certain common characteristics. Women between the ages of 10 and 50 have been grouped together by the temple authorities themselves, on the stated ground that they are likely to disturb the “celibacy” of the deity. It is difficult to see how, in such circumstances, they do not constitute a “class”. Even though the historical context of the legislation was to ensure the removal of caste-based disabilities, it is crucial to note that the legislature chose not to use the word “caste”, but used the much broader “class” and “section”. To read these words narrowly, then, does not appear to me to be justifiable.

Section 3, however, also goes on to state that “Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion.” The proviso, therefore, overrides the right under Section 3 in cases of denominational institutions. In fact, the proviso echoes the language of Article 26(b) of the Constitution, insofar as according religious denominations autonomy in determining questions pertaining to religion. If, therefore, the conditions of the Proviso are satisfied, then there might be a problem: the Court could read down the Rule to be limited to situations where the proviso is satisfied. In other words, not every “custom or usage” is protected by the Rule, but only such customs are usages that fall within Article 26(b). It is doubtful whether the Court can read down Rule 3 to this extent (I doubt that it can), but it is certainly an option open to it. Consequently, let us consider other arguments.

Assuming, therefore, that the Rule has been read down to accord with Section 3, the second leg of the argument, then, would challenge the exclusion of women under the said rule as being unconstitutional. Let us therefore consider the constitutional arguments:

B. Constitutionality of Rule 3

The arguments on the constitutionality of Rule 3 would proceed along the same direction. It is well-established, in Madhu Kishwar vs State of Bihar, that custom or usage is subject to Part III of the Constitution. Therefore, the exclusion of women, insofar as it is justified purely by reference to custom, is unconstitutional (it violates Articles 14, 15 and 25(1)). And insofar as Rule 3 permits such exclusion, it is unconstitutional (I am assuming here that, as secondary legislation, the Rule is subject to Part III). However, once again, the core question remains must be addressed separately: what happens if the Rule – and the exclusion that it permits – is justified by recourse to the Constitution itself? Let us therefore move to the constitutional arguments.

C. Article 25(1) as the Foundation of the Petitioners’ Case

The Intervenors have argued that they have an Article 25(1) right to enter the Sabarimala Temple for the purposes of worship, since it is part of their constitutionally protected “practice” of religion. While in most cases, a Court would not contradict this claim, as long as it is genuinely and sincerely held, the Indian position – as we have seen earlier – is rather different when it comes to judicial intervention into questions of faith. The position is somewhat complicated by precedent: in Ismail Faruqui, the Supreme Court held that “the right to worship is not at any and every place, so long as it can be practised effectively.” However, the Court followed this up by noting “…unless the right to worship at a particular place is itself an integral part of that right.” The distinction between mosques and temples is relevant here: in monotheistic Islam, an individual mosque may not have specific religious significance – while in Hinduism, individual temples dedicated to specific deities are not substitutable in the same sense. For this reason, despite Ismail Faruqui, the right to worship at a “particular place” could well be “an integral part of… [the] right [to worship]” simpliciter in the present circumstances, especially since the Sabarimala Temple is dedicated to a specific deity.

Notable, unlike other provisions of Part III, Article 25(1) is not, in its terms, only enforceable against the State. It stipulates that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” Consequently, individual interference with this right (through the temple authorities), or interference by the Davaswom Board, would appear to be actionable under Article 25(1), without getting into knotty questions of maintainability under Article 12. At any rate, it is now well-established that the State’s obligations under Part III are not merely negative obligations of non-interference, but extend to guaranteeing effective exercise of fundamental rights. Consequently, at the very least, if the Petitioners’ claims under Article 25(1) stand, they can call upon State aid to enforce their right of access.

D. Article 26(b) as the Counterpoint to Article 25(1)

Article 26(b) guarantees the right of every religious denomination “to manage its own affairs in matters of religion.” This appears to be the foundation of the Respondents’ case. It is therefore worthwhile to focus upon it a little closely. To fall within Article 26(b), three conditions must be satisfied: (i) since Article 26(b) is subject to “public order, morality, or health“, that preambular clause must not be attracted; (ii) the claimant must be a “denomination”; (iii) the claim must pertain to “matters of religion“. With respect to (iii), Petitioners are not disputing that the issue of temple entry is a matter of religion (indeed, having themselves claimed a right to entry under Article 25(1), it is difficult to see how they could get out of that). To the best of my understanding, they are also not claiming that the Temple is a denominational temple – although the Supreme Court has, in the past, laid down fairly rigorous tests in determining what constitutes a “religious denomination” for the purposes of Article 26(b). Perhaps this is a question that will be raised by the amici, or one that the Court will examine independently.

Intervenors are arguing, however, that the operation of Article 26(b) is barred by the “morality” clause. In particular, they are arguing that the word “morality” is to be taken to mean “constitutional morality” – and since “gender justice” is an integral part of constitutional morality, denominational practices that go against gender justice are not protected by Article 26(b). The bar on menstruating-age women, whether one spins it as being based on the perceived uncleanliness of menstruation, or on the “celibacy” of the deity, amounts to gross gender stereotyping, and therefore violates constitutional morality.

I am sympathetic to the idea of constitutional morality, and have tried to fashion arguments based on constitutional morality myself, in the past. However, I see at least two problems with this argument, as it stands. The first is that insofar as Intervenors are relying upon Articles 14 and 15(1) to establish gender justice as being part of constitutional morality, both these Articles are expressly directed against the State. Therefore, even if one was to accept that “morality” refers to “constitutional morality”, the most that the Constitutional text seems to indicate is constitutional morality requires the State not to discriminate on the basis of gender. In fact, a closer reading of the constitutional text seems to militate against the Intervenors’ argument. Article 15(2), which is horizontally applicable, is limited to securing non-discriminatory access to “shops, public restaurants, hotels, and places of public entertainment.” Conspicuously, religious institutions are excluded. In fact, Article 25(2)(b), which deals with the throwing open of Hindu religious institutions to all sections of Hindus, is framed as permitting – but not obligating – the State to make laws for temple entry. This would seem to indicate that constitutional morality does not mandate gender equality in with respect to access to religious institutions.

Secondly, the scheme of Articles 25 to 30 suggests that the Constitutional vision strongly supports the rights of groups to cultural autonomy. Apart from Article 26(b), Article 29 guarantees the rights of minorities to preserving their language, script and culture. Now, on what basis does one argue – purely from the constitutional text – that the right to equality or gender justice necessarily overrides the principle of cultural autonomy? On which side does constitutional morality weigh heavier? I am not arguing that the Petitioners are incorrect – only that the constitutional text underdetermines the question as far as constitutional morality is concerned.

My own argument – which I’ve recently made in an article – is slightly different. The Constitution, I’ve tried to argue, is committed to an “anti-exclusion principle”: it prohibits both the State and communities from treating individuals in discriminatory ways, insofar as that discrimination blocks their access to crucial public goods, whether material or symbolic. It seems to me that access to a temple is central to equal moral membership in the cultural community, especially in a country like ours, where private and public life is suffused with religion to such an extent. The denial of entry to women on grounds such as menstruation, or breaking the deity’s celibacy, is a classic example of gender-stereotyping, which would be uncontroversially unconstitutional if done by the State. Given the place of the temple at the heart of community life, I would submit that it is similarly unconstitutional in the present situation.

E. The Temple as “Public Space”

The Bench appears to have framed the issue as a question of whether religious custom can override the right to gender equality in the context of a public temple. With respect, I do not think this is entirely correct. As argued above, the right to equality is not directly relevant in the present case, since Articles 14 and 15(1) make it clear that it is only enforceable against the State. The “publicness” of the temple is another matter altogether: I would argue that if the Court is to hold that the Sabarimala Temple is a “public temple”, then it no longer remains a “denominational” religious institution, and loses the protection of Article 26(b) without the necessity of going into the morality clause. In such a situation, the question becomes straightforward: the petitioners have a right to enter the temple under Article 25(1), and the Devaswom Board has no corresponding right to deny them entry under Article 26(b). Without the umbrella protection of 26(b), for the reasons adduced at the beginning of this post, Rule 4 is either ultra vires, or unconstitutional.

(Interestingly, during the first temple entry satyagraha in 1927, Ambedkar framed the issue as precisely being one of a right to access public spaces on an equal basis. “The issue is not entry, but equality“, he famously said).

(For another take on the issue, see Alok Prasanna’s article on FirstPost)

 

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Ambedkar and the Social Boycott

Previously on this blog, we have discussed how Article 15(2) of the Constitution, which guarantees non-discriminatory access to shops, public restaurants, hotels etc., has been read expansively by the Supreme Court to cover the domain of economic transactions more generally, and can be invoked to invalidate restrictive covenanting. We have also discussed how Chief Justice Sinha’s dissenting opinion in the Saifuddin case envisages a Constitution that is equally solicitous towards horizontal asymmetries of power as it is towards State coercion upon the individual. Textually, the Indian Constitution itself is keenly cognisant of horizontal asymmetries, as it guarantees three horizontally enforceable rights (Articles 15(2), 17, and 23), and further authorises the State to recalibrate the internal relationship between religious communities in a more egalitarian direction (Article 25(2)(b)).

As we have discussed earlier, in cases such as Zoroastrian CooperativeSaifuddin, and others, the right to horizontal non-discrimination has come up against the right to freedom of association. Interestingly, this tension is neither new nor recent. Recently, I came across an extensive discussion about this problem, dating back to pre-constitutional times. In Chapter III of his 1945 text, What Congress and Gandhi Have Done to the Untouchables, B.R. Ambedkar outlines a Memorandum that he submitted to the 1930 Round Table Conference, dealing with political safeguards for the protection of the “Depressed Classes”. After beginning with the right to equal treatment, enforceable against the State, and drawn from the American Fourteenth Amendment as well as the 1920 Government of Ireland Act, he then proposes an “offence of Infringement of Citizenship“, drawn from the Reconstruction Civil Rights Act in the United States:

“Whoever denies to any person except for reasons by law applicable to persons of all classes and regardless of any previous condition of untouchability the full enjoyment of any of the accommodations, advantages, facilities, privilege of inns, educational institutions, roads, paths, streets, tanks, wells and other watering places, of public conveyances on land, air or water, theatres or other places of public amusement, resort or convenience whether they are dedicated to or maintained or licensed for the use of the public shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.”

Implicit in this was Ambedkar’s view that equal citizenship entails equal access to public utilities, or public spaces (with an expanded definition of the “public”). Fascinatingly, he then quoted a colonial government source – a 1928 Bombay Committee Report, which had this to say:

“The Depressed Classes have no economic independence in most parts of the Presidency. Some cultivate the lands of the orthodox classes as their tenants at will. Others live on their earnings as farm labourers employed by the orthodox classes and the rest subsist on the food or grain given to them by the orthodox classes in lieu of service rendered to them as village servants. We have heard of numerous instances where the orthodox classes have used their economic power as a weapon against those Depressed Classes in their villages, when the latter have dared to exercise their rights, and have evicted them from their land, and stopped their employment and discontinued their remuneration as village servants. This boycott is often planned on such an extensive scale as to include the prevention of the Depressed Classes from using the commonly used paths and the stoppage of sale of the necessaries of life by the village Bania. According to the evidence sometimes small causes suffice for the proclamation of a social boycott against the Depressed Classes. Frequently it follows on the exercise by the Depressed Classes of their right to the use of the common well, but cases have been by no means rare where a stringent boycott has been proclaimed simply because a Depressed Class man has put on the sacred thread, has bought a piece of land, has put on good clothes or ornaments, or has carried a marriage procession with the bridegroom on the horse through the public street.

We do not know of any weapon more effective, than this social boycott which could have been invented fur the suppression of the Depressed. Classes. The method of open violence pales away before it, for it has the most far reaching and deadening effects. It is the more dangerous because it passes as a lawful method consistent with the theory of freedom of contract. We agree that this tyranny of the majority must be put down with a firm hand, if we are to guarantee the Depressed Classes the freedom of speech and action necessary for their uplift.”

The important insight here is that in a society with pre-existing asymmetries of economic and social power, such power can be leveraged in a manner so as to discipline subordinated groups through the threat of exclusion from the economic and social life of the community, and thereby, from access to the public goods required to sustain a life with dignity (whether material or cultural). It is interesting to note that the Report specifically observes that technically, the boycott is lawful because it is consistent with the principle of the freedom of contract, but nonetheless must be outlawed. Of course, freedom of contract itself assumes a formally equal and hierarchy-free society (hence, Henry Maine’s famous “from status to contract“), which is rarely consistent with reality.

Based on the report, and his own observations, Ambedkar then suggested the following definition of “boycott” which he borrowed, in part, a previous Burma law:

“A person shall be deemed to boycott another who… refuses to let or use or occupy any house or land, or to deal with, work for hire, or do business with another person, or to render to him or receive from him any service, or refuses to  do any of the said things on the terms on which such things should commonly be done in the ordinary course of business, or… abstains from such social, professional or business relations as he would, having regard to such existing customs in the community which are not inconsistent with any fundamental right or other rights of citizenship declared in the Constitution ordinarily maintain with such person, or… in any way injures, annoys or interferes with such other person in the exercise of his lawful rights.”

The final text of Articles 15(2) (access to shops), 17 (prohibition of untouchability), 23 (prohibition of forced labour) and 25(2)(b) (authorising the government to make laws for access to Hindu religious institutions of a public character) together constitute a code that is a somewhat attenuated and diluted version of Ambedkar’s original – and radical – proposals: to have a Constitution that provided not only individual freedom and freedom of community, but also freedom from community. The expansive interpretations given to these articles in IMA v Union of India, Justice Sinha’s dissent in Saifuddin, and in PUDR v Union of India (which read “forced labour” to include exploiting a depressed market by refusing to pay minimum wage) represent something of an attempt to reclaim, in part, the radicalism that was lost somewhere in the framing of the founding document.

(The civil rights movement demanding equal access to public facilities, led by Ambedkar, is documented in detail by Anupama Rao in her book, Caste Question. I have recently written a paper attempting to derive an “anti-exclusion” principle from the text and structure of the Constitution, available here.)

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“Untouchability” and the Constituent Assembly Debates

Previously on this blog, we have discussed the judgment of the Supreme Court in Venkataramana Devaru (constitutional validity of temple-entry legislation), and the dissenting opinion of Chief Justice Sinha in Sardar Saifuddin (constitutional validity of prohibiting excommunication). What unites these two opinions is not merely their upholding laws designed to recalibrate the relationship between religious communities and their members in more equitable directions, but their invocation of Article 17 of the Constitution (prohibition of untouchability) to do so. In Venkataramana Devaru, the Supreme Court read Article 25(2)(b) of the Constitution alongwith Article 17, in order to have it prevail over the contrary injunction of Article 26(b). And in Saifuddin, Sinha CJ understood Article 17 to contain a broad prohibition of outcasting and a constraint upon the ability of communities to treat one of their own as a “pariah”.

There is an immediate objection here. The word “untouchability”, understood as a term of art, does not include every practice of exclusion engaged in by a group against a members. Rather, it is limited to a practice prevalent within the Hindu caste system, at the heart of which is the prohibition of physical contract with those deemed “untouchables”, and its consequent spillover into the realms of economic, political and social subordination. Was it therefore justified for the Court in Devaru, and Sinha CJ in Saifuddin, to use “untouchability” in this broader sense?

Let us start by observing that Article 17 itself provides for the abolition of untouchability “in any form“, thus lending textual credence to the broader interpretation. And now consider the history of the constitutional framing. In the Government of India Act of 1935, “Untouchables” were limited to a set of specifically enumerated (Hindu) castes. Article 17 of the Constitution, however, contained no such qualification. Indeed, for this reason, many members of the Assembly – at many stages of the drafting process – drew attention to the capacious, even vague, nature of the simple word “untouchability”. Some members asked rhetorically whether the constitutional prohibition would extend to cover persons suffering from infectious diseases, or whether it would allow for the suppression of Islam, given that on some interpretations of that religion, women were metaphorically treated as “untouchables”. In response to this, K.M. Munshi argued that in the draft Constitution, the word “untouchability” had been placed within quotation marks – thus making it clear that the ideas was to “deal with it in the sense in which it is normally understood” (i.e., the narrow, specific sense). Despite this, however, many Constituent Assembly members continued to call for the narrowing down of the definition – for instance, Naziruddin Ahmed moved an amendment seeking to limit Article 17 to issues of “religion or caste“. Dr. Ambedkar categorically refused to accept the amendment, and the Assembly then voted it down.

While some of the debates in the Assembly focused on the specific caste-centred understanding of untouchability (in particular, speeches by Harijans), none of these exchanges set up the narrow definition in opposition to the broader one. In fact, other members drew a connection between Article 17 and 15(2), arguing that Article 15(2)‘s prohibition of horizontal discrimination in access to shops, hotels, public restaurants etc. was redundant, in light of Article 17. Notice, however, that Article 15(2)’s grounds of discrimination were broad, and included – in addition to religion and caste – sex, race and place of birth. A narrow reading of Article 17 could not have been reconciled with the position that it already covered the field of Article 15(2). And in fact, other members specifically argued that the prohibition upon untouchability meant the right of everyone to enjoy “equal social conditions”, “equal rights”, “social equality”, the abolition of “social inequity… social stigma and… social disabilities”, and a remedial clause for “those who have been left behind in social and economic matters.” It therefore seems clear that between both the supporters and the opponents of Article 17 as it stood, there was agreement on the breadth of its meaning.

There is, therefore, strong warrant in the constitutional text and drafting history for the broad reading advanced in Venkataramana Devaru and by Justice Sinha in Saifuddin. Elsewhere, I have called this the “anti-exclusion principle“: the Constitution forbids the exercise of group or community power in a manner that excludes its constituents and blocks their access to the basic goods required in order to sustain a dignified human life. Indeed, when we read Justice Sinha’s understanding of Article 17 along with the interpretation of Article 15(2) advanced in IMA v Union of India, and Justice Bhagwatis’s reading of the prohibition of “forced labour” under Article 23 to include a guarantee to a minimum wage in a hostile market (in PUDR v Union of India), what emerges is a radical vision of the Constitution. The three horizontal rights in Part III (Articles 15(2), 17 and 23) are not simply narrow, specific entitlements, but speak to a reality in which private power (whether exercised through communities or corporations) can have as deep and profound an effect on individual liberty and freedom as public or State power; and these three judgments demonstrate advance a principled interpretation of the Constitution in order to constrain private power in service of individual liberty – “transformative” constitutional interpretation in its truest sense.

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Guest Post: The Supreme Court on Parliamentary Privileges and Fundamental Freedoms – II

(In this guest post, Tejas Popat analyses the recent Supreme Court decision on the suspension of Tamil Nadu assembly lawmakers (discussed in the previous post), from the perspective of the freedom of occupation)

Justice Chelameswar authored the judgment in the case of Alagaapuram R. Mohanraj and Others v. The Tamil Nadu Legislative Assembly and Others delivered on 12th February 2016. The origin of the case is in the suspension of the MLAs in Tamil Nadu because of the allegedly unruly behaviour in the Assembly. Challenging the suspension, one of the contentions of the petitioners was that the right to occupy the office of an MLA fell under Article 19(1)(g) within the term “occupation”. They placed reliance on the T.M.A Pai Foundation case where it was stated that the term “occupation” shall be given the widest interpretation. It is in this context that Justice Chelameswar seeks to address the question of whether the right to occupy the office of an MLA falls within the ambit of the term “occupation” in Article 19(1)(g).

In order to address the question, at paragraph 22 of the judgment he deems it necessary to examine the “etymological and contextual meaning” of the word ‘occupation’ in Article 19 (1)(g). After doing so, he concludes at paragraph 24 that “all the activities contemplated under Article 19(1)(g) are essentially activities which enable a citizen to generate economic benefits.” In order to reach the conclusion, he relies on two cases viz. Sohan Singh v New Delhi Municipal Committee and T.M.A Pai Foundation and Others v State of Karnataka and Others.

Here, I wish to demonstrate how the reliance on the cases is wholly misplaced and counterproductive. I shall analyze how the reliance on Sohan Singh is erroneous. In paragraph 23 he quotes the Sohan Singh case as a binding precedent: “This court (Sohan Singh’s case) had the occasion to examine the question and held that“(authors emphasis) which is wholly flawed as the quoted, paragraph 28 is a part of the concurring opinion of Justice Kuldip Singh. The paragraph that was quoted was a remark made by Justice Kuldip Singh in the larger context and nothing more. Also, the case never considered the ‘etymological and contextual meaning’ of the term occupation. Hence the reliance placed on Sohan Singh’s case is misplaced.

I shall now analyze the dependence of Justice Chelameswar on T.M.A Pai’s case and the counterproductive result it produces. The judgment quotes paragraph 20 of the Pai case rather, quotes selectively. The full paragraph is as follows:

“20. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [See The State of Bombay v. R.M.D. Chamarbaugwala]. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression “occupation”. Article 19(1) (g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster’s Third New International Dictionary at page 1650, “occupation” is, inter alia, defined as “an activity in which one engages” or “a craft, trade, profession or other means of earning a living”.” (The part in bold is the quoted paragraph in the judgment while underlined is the author’s emphasis)

Subsequently, in paragraph 21 the T.M.A Pai case analyzes the definition offered in Corpus Juris Secundum, Volume LXVII and the Sohan Singh case. The reliance on Sohan Singh’s case is partly misplaced for the reason that it did not specifically analyze the import of the terms in Article 19 (1)(g). This is however mitigated by the independent analysis done in this judgment itself. The T.M.A Pai case did not treat the observation in Sohan Singh as a ratio, the mistake made in the latest case. The T.M.A. Pai case states, at paragraph 25,

The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g). “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh’s case correctly interpret the expression “occupation” in Article 19(1)(g).” (Authors emphasis)

The “above quoted observations” of the Sohan Singh case was,

“”…..The word occupation has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged…..The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. In a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living…..”.”

It is therefore by necessary implication that the T.M.A Pai case approved the observation in the Sohan Singh case as being the correct interpretation only to the extent to which it quoted the judgment and not the rest of the observations. However, Justice Chelameswar regards the Sohan Singh case as binding authority and also relies on the judgment in the Pai case where, he unfortunately is guilty of selectively quoting it. The implication of this is Justice Chelameswar holding that “The amplitude of the term ‘occupation’ is limited by the economic imperative of livelihood generation. Therefore, all the activities contemplated under Article 19(1)(g) are essentially activities which enable a citizen to generate economic benefits.” This runs counter to the ratio of the T.M.A Pai case as acknowledged in the cases of P.A. Inamdar & Ors v State of Maharashtra & Ors and the Ashok Kumar Thakur v Union of India of running an educational institution falling within the ambit of the term “occupation” regardless of the profit motive or the economic benefits. The conclusion recorded in the judgment is thus bad in law.

It is to the credit of the judges that the judgment was handed out within a year of the incident taking place. While the alacrity is appreciated by the populi, the errors make them sceptical of the quality of the judgment being compromised, as was in this case. Helpless, they’d say, “My Lordship, Abundans Cautela Non Nocet!”

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