Article 15 and Typologies of Discrimination – II: Disparate Impact

To recapitulate our discussion in the last post: disparate impact occurs when policies neutral on their face nonetheless place burdens upon particular groups (e.g., promotion policies dependent upon spending a specific number of days in a year at office have such an impact upon pregnant women). The question is whether Article 15 is attracted in such cases. We have noticed that opinion is divided in other jurisdictions, and the text and structure of Article 15 appears to militate against this conclusion.

Let us now turn to constitutional philosophy. What philosophical reasons exist for arguing against disparate impact generally? It is the Hayekian idea that a violation of liberty must necessarily be specific and intentional to be so. To repeat an example we have examined before on this blog: if someone locks me up in a house, that is a violation of my freedom; however, my inability to fly unaided because of my body structure and the forces of gravity cannot properly be called a violation of freedom – it is a simple inability. Analogising from this, Hayek argues (described here) that the background economic and social structure is much like the forces of gravity and my body structure: if I am too poor to buy a ticket to a movie theatre, that is terribly unfortunate, but it isn’t a violation of my freedom the way it would be is someone physically barred my access to the said theatre even after I had purchased the ticket. Against this, we can place the arguments of G.A. Cohen, for whom the social and economic structure, being State-created and then State-maintained (if I try to get into the theatre without a ticket, the police will physically bar me from doing so) is indeed a violation of freedom. Applying the arguments to disparate impact: let us assume – hypothetically – that because of various economic and social reasons, Dalits are by and large unable to access a good primary education. Correspondingly, they fail to do as well as others on “merit based” college entrance examinations. A Hayekian would argue that this is no discrimination, because the test itself classifies you on your intellectual ability, and the reasons why Dalits cannot make it have nothing to do with the intentions/purposes of the test itself. Readers can construct the opposing argument for themselves.

What about our Constitution? In discussing free speech, we have argued that our Constitution is more Cohen than Hayek, but leave that be for a moment: previously, we have discussed how many aspects of the Indian constitution are transformative in the sense that they seek to replace and transform prior value and ethical systems with different ones altogether. Article 15 is a classic example of this, seeking to transform India from a society in which caste, religion and sex-based discrimination was rife and invidious into one in which such discriminations were entirely invalidated.

But let us think deeper about this. Discriminatory practices did not exist in a vacuum – they were grounded upon a core set of ideas that linked a person’s worth with his birth. Various acts are simply the concrete manifestations of the ideas at play, and it is that that a transformative constitution attacks at its root. In other words, Article 15 doesn’t only seek to legally abolish discriminatory acts and policies – it seeks a transformation of the set of moral, ethical and political values that justified the said discrimination in the first place. But if this is true, then as long as the impact of that value-system continues, the central purpose of Article 15 has not been fulfilled. So suppose that for centuries, Dalits were socially and educationally suppressed because of assumptions about their human worth; because of this, their present social and economic situation is such that an access to good quality primary education is out of reach; and this, in turn, means that they do worse on college entrance examinations. Here, disparate impact is directly traceable to that very set of societal assumptions, policies and practices that Article 15 was seeing to transform out of existence.

Another example may make thing even clearer. Here is an excerpt from a famous article by Joan Williams:

“Western wage labor is premised on an ideal worker with no child care responsibilities. In this system men and women workers are allocated very different roles. Men are raised to believe they have the right and the responsibility to perform as ideal workers. Husbands as a group therefore do far less child care, and earn far more, than their wives. Women are raised with complementary assumptions. They generally feel that they are entitled to the pleasure of spending time with their children while they are small. Moreover, even upon their return to work, the near-universal tendency is to assume that women’s work commitment must be defined to accommodate continuing child-care responsibilities. This gender system results in the impoverishment of women, since it leads mothers systematically to “choose” against performing as ideal workers in order to ensure that their children receive high-quality care. The phenomena that comprise the gender system today are often noted, but the way the system functions as a coherent whole remains largely hidden.'”

Let us, for the purposes of argument, accept the truth of this critique – that is, wage differentials are directly linked to assumptions about the proper role of women in bringing up a family. But it is also a historically-accepted fact that such assumptions were themselves predicated upon assumptions of women’s ability and character that treated them as less worthy or deserving of respect than men – and furthermore, women themselves had no say in the construction of these assumptions.  Now if the purpose of Article 15 is to transform prior values celebrating oppression to new ones founded on equal respect and valid participation and consent, then we must also accept that a more concrete purpose of Article 15 is to replace the existing set of values that viewed the proper role of women as being confined to the home, the kitchen and child-care – because, as a matter of historical fact, these values are predicated on denying women both respect and agency (the fundamental Article 15 ideas). In which case, a disparate impact upon the earnings of men and women that is founded upon those very set of values (as the Williams’ article shows) is not only problematic, but constitutionally problematic.

In this context, President of the Republic of South Africa v Hugo,  decided by the South African Constitutional Court, is a classic example of transformative constitutionalism working in precisely this fashion. To celebrate his inauguration, President Mandela pardoned a number of prisoners, all of whom shared one common characteristic: they were mothers of children under the age of 12. This move was challenged on the grounds of sex-discrimination. President Mandela argued that his act was motivated by concern for the welfare of the children, who were deprived of the care of their mothers at a young age. Over a strong dissent from Kriegler J., the Constitutional Court upheld the pardons for certain reasons that we need not here go into; but what is of singular moment is how the Court dealt with Mandela’s reasoning:

“The generalisation upon which the President relied is a fact which is one of the root causes of women’s inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared… at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”

Readers will note that the argument bears the same structure and form as our discussion above.

What objections may be made to our contention? Now it may be argued that after the Constitution came into being, Article 15 lifted women (and Dalits) to an equal status, and therefore, if presently there is a disparate impact, it must be because of individual choice – an argument the US Seventh Circuit Court of Appeals accepted in EEOC v. Sears. But there are two problems with such a suggestion: first, as we have argued before in this blog, such an approach places the burden of change upon the wrong party; not only are we accepting that a set of oppressive values and practices existed, we are also requiring those subjected to that regime to take it upon themselves to change it once the formal barriers have been removed. That does not seem fair. Secondly, as Akhil Amar argues in the context of the American 19th Amendment that gave women the right to vote, constitutional changes of this sort are not merely prospective and forward-looking – they are also admissions of deep, prior historical wrongs, and a further promise to make amends. And if that is true for Article 15, then one obvious way of making amends is a disparate impact test, that places the burden upon the government to show that its actions, that negatively affect hitherto disadvantaged and wronged groups, are necessarily and appropriately called for in the specific circumstances.

This, then, is my suggestion: Article 15 does apply to disparate impact situations, but in a qualified way: where disparate impact is the result of those lingering prejudices, practices, values and ideas that it was the Article’s purpose to eliminate, a constitutional challenge is called for.

Article 15 and Typologies of Discrimination – I: “Grounds”

Article 15 prohibits discrimination on “grounds” only of religion, race, caste, sex, place of birth or any of them. In previous posts, we have examined the scope of the non-discrimination clause with respect to its enumerated (and unenumerated) categories. It is worth nothing, however, that the seemingly neutral word “grounds” itself incorporates a set of political choices that ought to be examined and critiqued. In this post, we shall analyze two such choices.

First, in choosing the word “ground“, the Constitution, by exclusion, makes motive irrelevant. In R(E) v. Governing Body of JFS, the UK Supreme Court invalidated a Jewish school’s admissions policy under the Race Relations Act, that prohibited discrimination on the grounds of race. The school argued that its policy was actually aimed at selecting orthodox jewish students, which was a question of religion, not of race. Irrelevant, said the Court. Whatever the motive or purpose of the admissions policy, the test that it used for selection was race-based (orthodox jewishness was a function of one’s descent along that matrilineal line). Thus, while the motive behind the classification was arguably legitimate, the grounds on which said classification was made (in order to fulfill the motive) was not, and that was all that mattered.

Suppose, for instance, that the Delhi Police wishes to recruit only Hindi speakers into the force (a form of linguistic discrimination, which the Article 15 does not prohibit); in order to do so, it limits its selection only to people born in Delhi, thinking that this is the most convenient way of making the selection without actually having to test language skills. Such a classification would be vulnerable under Article 15 because while the Delhi Police’s motive (selecting particular language speakers) conforms with Article 15, the grounds it has chosen do not. It is obvious – in addition to the text – to see why this must be so: if motive was brought into play, then the difference between Articles 14 and 15 would dissolve: in the Delhi Police example, for instance, we would be back to analyzing whether there was intelligible differentia between Delhi-born and non-Delhi-born persons that bore a reasonable nexus to the governmental objective of an all-Hindi-speaking police force. If that were so, then Article 15’s specific selection of particular categories would become redundant (this, as most readers would have guessed, bears a close connection with the debate over standards of scrutiny under Article 15, a question we do not have the space to consider at this point). The reason why Article 15 exists is because certain groups have, historically, been invidiously discrimination against on the basis of nothing more than rank prejudice, to the extent that there now exists a near-irrebuttable presumption that classifications targeting such groups are constitutionally suspect. By singling out those categories, Article 15 serves a unique purpose that may not be conflated with the more abstract, formal equality guarantees of Article 14.

Secondly, consider the problem of disparate impact. Disparate impact occurs when facially neutral policies nevertheless cast a disproportionate burden upon specific groups. Let us take a very simple example: promotion in a job is conditioned upon being at work for at least eighty percent of the year’s designated working days. Now, the “ground” upon which the classification for promotion/non-promotion is being made is facially neutral in that it relates to time spent at work; but clearly, pregnant women as a group will be unable to meet the condition imposed. Thus, the promotions policy will have a disparate impact upon pregnant women – as a group, their chances of promotion are reduced to negligible. As is obvious, disparate impact plays a crucial role in affirmative action controversies, labour and workplace law, sex discrimination and so on.

Disparate impact goes under the name of “indirect discrimination” in European jurisprudence. Article 2(b) of the 2000 Council Directive states that “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” Whether or not “particular disadvantage” occurs in a particular case is, of course, a factual enquiry, which admits of no bright line tests. For example, assume a governmental institution has sixty percent men and forty percent women, but in every promotion round, eighty percent of the promotees are men – that is the kind of statistic that will establish presumptive indirect discrimination, and place a high burden upon the State to argue that it is “appropriately and necessarily” mandated by a legitimate governmental objective.

Disparate impact, on the other hand, was rejected by the American Supreme Court in Washington Davis,  where the use of verbal skills as recruitment tests in the Washington Police Department was upheld despite disproportionately affecting African-Americans, since no discriminatory purpose was demonstrated. Subsequently, Congress overturned this decision by amending the Civil Rights Act, which in turn was the subject of a contentious Supreme Court case in 2009, Justice Scalia arguing that a disparate impact test violated the guarantee of the equal protection of laws, and the Constitution’s aim of being “color-blind“. The argument here is that by making disparate impact constitutionally relevant, you are violating the Constitution’s commitment to non-discrimination by picking out certain groups over others for favorable treatment. To go back to our pregnancy example – a Scalian would (presumably) argue that making a special exception for the promotion of women would violate Article 15 because it placed men at a legal disadvantage by taking specific sex-based characteristics into account, and thereby discriminating on the grounds of sex. 

The contrasting approaches in the EU and the United States suggest that the relationship between disparate impact, equality and non-dicrimination is a contested one. What does our Constitution say? There are two reasons, grounded in text and structure, that argue against reading disparate impact into Article 15. First, the use of the word “grounds”, as illustrated above, seems to limit the clause to cases where the basis of the classification is one of the prohibited categories. And secondly, the Constitution itself seems to recognize the perils of disparate impact by enacting affirmative action provisions for education and employment – Articles 15(4) and 16(4) . In other words, by providing the government with the tools to remedy the effects of disparate impact that would result from a technical reading of Article 15(1) (and 16(1)), the Constitution mitigates its effect – and thus, by specifically providing for those situations, excludes all other cases by necessary implication (“expressio unius…”)

Unfortunately, the position is complicated by the shift in the Court’s jurisprudence after the 1975 case of State of Kerala v. NM Thomas, where the Court, departing from its established position that 15(4) and 16(4) were exceptions to the equality provisions of 15 and 16, held instead that they were “emphatic expressions” of the basic idea of substantive equality already contained within 15 and 16. In other words, post-Thomaswe are to assume – for instance – that the constitutional justification for affirmative action lies not in 15(4), but in 15(1), and the conception of equality and non-discrimination it embodies. What, precisely, is the content of this concept, and does it extend to other cases of disparate impact? We do not know.

In the next post, we shall consider what our constitutional philosophy has to say about this.

Transformative and Conservative Interpretation: Untidy Corollaries

(To Kunal Ambasta, fellow traveler on constitutional roads, fine human being and good friend.) 

In the last post, we explored the possibility of a Constitution serving two distinct purposes – conservative and transformative. Recall that a Constitution can be conservative in that it seeks to preserve, codify and entrench an existing set of values and institutions; or it could be transformative in that it seeks to replace them. We noted that large parts of the American constitution are examples par excellence of conservative provisions, whereas our own Articles 15 (non-discrimination) and 17 (abolition of untouchability) are paradigm cases of transformative provisions.

One enquiry was simplified by the fact that in our model, the American constitution, the conservative/transformative distinction, in large part tracked a more familiar distinction between individual rights and structures of governance. Yet things need not always be that simple (and the American constitution, after its reconstruction amendments granting equal citizenship to blacks, is certainly not that simple). There is no reason why, within the same set of rights, some can be transformative, and some conservative. Here is an example: if Ranjit Udeshi was right in upholding the ban on Lady Chatterley’s Lover (and I do not think it was), its only justification would be that Article 19(2)’s morality clause sought to conserve and codify existing dominant conceptions of “public morality“. Here you have a classic case of transformative and conservative elements blending not just within the same bill of rights, but within the same provision: Article 19(1)(a) is transformative in the sense that it grants citizens the right to free speech that they didn’t have under the Empire or previously; while at the same time, it restricts the scope of that right by entrenching an existing value system into law.

What, then, does this distinction further entail? Here is one suggestion: many of us, when we first enter the labyrinth of constitutional law, choose as our own Ariadne’s ball of thread, a particular interpretive methodology to help us navigate. We then defend our chosen method (or sometimes, combination of methods) against all others by invoking various arguments grounded in democracy, the separation of powers, or just plain common sense. Originalism suffers from the dead hand problem, for instance; “living tree” doctrines, on the other hand, would seem to vest too much power in unelected judges to substitute their own moral preferences for the majority’s; textualism makes a mockery of how language is used by refusing to take into account the rich surrounding context, both within the document and historical; structural analysis is unfaithful to the framers by imposing coherence and unity upon what was actually a patchwork quilt of bargain and compromise; and so on. But if Constitutions can themselves serve at least two very different – indeed, opposite – purposes, then perhaps there is no one correct method – or combination of methods – of interpretation. Perhaps the right way of interpreting a constitutional provision depends upon whether it is conservative or transformative, and to what extent.

Here is one trivial way in which this is true: a transformative provision obviously cannot be interpreted by invoking traditional values. If the point of inserting a free speech clause into the Constitution was transformative in that it meant to ensure that a dominant class would no longer be able to silence opinions that it perceived to be immoral or harmful, then it makes no sense to read 19(2)’s morality clause as “public morality” – because all that does is to replace the British with whatever class whose stated morals the Court decides to count as “public“.

There are also, however, subtler issues at hand. One dominant form of constitutional interpretation, championed by Justice Antonin Scalia at the US Supreme Court, is that of “original meaning” (the term is self-explanatory). Original meaning, I would submit, is a powerful interpretive method when we’re dealing with conservative constitutional provisions: because the objective is to preserve an existing set of values, what words meant at the time the provision was drafted would, indeed, be the best indicator of what content the values themselves had, and were meant to continue to have. On the other hand, originalism is inadequate to deal with transformative provisions, for the following reasons: first, a simple issue of language. While one is trying to transform a set of values, one’s tools to do that remain only words, and words not only carry with them the accumulated baggage of decades, sometimes even centuries, of consistent usage, but are also often implicit carriers of value. So it is quite possible – indeed, even likely – that the full transformative force of a concept will simply fail to be captured by extant patterns of language (“equality” being a classic example). 

Secondly, transformative provisions raise an issue of consistency. Here is an example: the framers wanted to transform a society that discriminated in all sorts of invidious and destructive ways by expressly writing a non-discrimination principle into law; they omitted sexual orientation from that list because they believed, on the basis of extant medical evidence, that homosexuality was a disease. That claim has been comprehensively debunked by medical research. So now, in 2013, what interpretation of Article 15 would be more faithful to the framers’ transformative vision? What interpretation would ensure that the Article 15 remained principled and consistent with itself? Naturally, one that read sexual orientation into Article 15 (as a parallel analogy: suppose the contract law of State X decided to shift from oral contracts to “written and printed contracts”, on the ground that it was easier to prove tangible agreements; does it make any sense to deny contractual protection to one done on microfilm?) . Note, however, that such a problem would never arise if the provision was simply conservative, because there you’re taking a set of values as given, without worrying about whether they are consistent with each other.

And lastly, consider a more speculative argument: a transformative constitutional provision is, among other things, a rebuke to illusions of infallibility; it is an admission that a particular generation got it wrong – wrong either in its identification of values, or in its attempt to entrench that value set against change by future generations; so wrong, in fact, that not just a modification, but a transformation is in order. It would be odd, then, that a provision predicated upon fallibility would arrogate to itself assumptions about its own infallibility. A transformative constitution – or rather, transformative constitutional provisions therefore, by virtue of their character, their origins and their philosophy, both invite and demand a dynamic, responsive and flexible interpretation – not a rigid, static and originalist one.

But even this isn’t the whole story, because as we discussed before, transformative constitutions in colonial contexts present a considerably more complex picture because often, alongside transforming values from the colonial to the post-colonial, they seek to conserve a perceived vision of the pre-colonial, an idea of the nation before it was conquered. At this point, I freely confess that my own grip on what interpretive strategy fits best begins to be cast off its moorings; what I would like to argue definitively, though, is that our interpretive approach to the Indian Constitution (beyond merely the question of whether to invoke traditional values in interpreting it) depends upon a detailed analysis questioning which parts of it are conservative, which parts transformative, and in what way. 

Infusing Values into a Transformative (and Post-colonial?) Constitution

The past is a foreign country: they do things differently there.” – L.P. Hartley

In his book, Constitutional Fate, Philip Bobbitt lists various “modalities of constitutional argument” – that is, methods of constitutional argument that are compatible with the institution of judicial review. His typology includes the following: textual, historical, doctrinal, prudential and structural arguments; the categories are largely self-explanatory, and we have discussed a few of them before on this blog. But then, Bobbitt adds one final “modality” – ethical argument. Here is how Bobbitt defines the term:

By ethical argument I mean constitutional argument whose force relies on a characterisation of American institutions and the role within them of the American people. It is the character, or ethos, of the American polity that is advanced in ethical argument as the source from which particular decisions derive.” (p. 94)

Bobbitt sees the case of Moore v. City of East Cleveland as an example par excellence of the use of ethical argument in constitutional law. In that case, an Ohio zoning ordinance that limited occupancy of a dwelling unit to members of a “single family” was struck down as a violation of due process clause. Justice Powell wrote:

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition… the tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots… venerable and… deserving of constitutional recognition… conditions of modern society… have not erased the accumulated wisdom of civilisation, gained over the centuries and honoured throughout our history… that supports a larger conception of the family.

Similarly, Bobbitt highlights the case of Meyer v. Nebraskawhere, in striking down a statute that criminalised teaching foreign languages to children below the eighth grade, Justice McReynolds defined “liberty” to include “… those privileges long recognised at common law as essential to the orderly pursuit of happiness by free men.”

Let us pause and consider the language used by the Justices. “Deeply rooted“, “history and tradition“, “accumulated wisdom… over the centuries“, “long recognised“, “at common law…“: these terms bring suggest, above all, the legitimation of values by virtue of their source in folk wisdom, and their enduring validation under principles of stability and continuity. Now, whatever might be the abstract merits of such an approach to determining the right and the good, we must also enquire about their place in constitutional argument; and that, in turn, requires us to to investigate the purposes of Constitutions themselves.

A Constitution, naturally, is something that “constitutes”. Political constitutions “constitute” the basis for the distribution of political power in a polity by setting up governing institutions and structuring their relationships with each other and with the people. But the very idea of “constituting” implies birth: and birth, in this context, can occur in two situations: the creation of something where nothing existed before, or the comprehensive replacement of what used to exist with something entirely new. A brief look at some of the important (written) Constitutions in the modern era proves instructive: consider the American Constitution, the French Declaration of the Rights of Man, and the Indian, South African and Irish Constitutions. All these occurred at the cusp of a historical fissure, at a moment when a decisive break was being made with the past, whether in the case of the violent overthrow of an ancien regime, the (relatively) peaceful transition of power from a colonial government to an independent one, or the end of apartheid.

Yet, it would be a mistake to assume that a decisive break with the past is necessarily a complete break with it. As Will Kymlicka demonstrates eloquently in his book, Multicultural Citizenship, our being embedded and located within an enduring culture, with its set of defined values and traditions, is often an essential precondition for living an autonomous and fulfilling life – and common sense tells us that no break with the past can sweep away everything that came before. To borrow some helpful terminology from John Rawls, let us define a political transformation as a transformation of the basic structure of the political institutions of society; and a comprehensive transformation as a transformation of its moral vision of the good, and its ideas of what it means to live a good life (Rawls makes this distinction in the context of political liberalism and comprehensive liberalism). Our discussion shows that constitutional moments normally presuppose the first kind of transformation, but it is an open question whether and to what extent they presuppose the second.

I now introduce a second typology: let us label those aspects of a Constitution that seek to preserve parts of the existing order as “conservative“; and those that it seeks to replace as “transformative“. I suggest that the impossibility of absolute change implies that every Constitution must have both conservative and transformative elements; what combination it will have them in is a contingent matter, dependent upon history and circumstance.

Consider, for instance, the American Constitution: the entire raison d’etre of the American War of Independence was that the American colonists felt that the King was denying to them the traditional rights and liberties enjoyed under common law by Englishmen. The Declaration of Independence, for instance, makes explicit reference to “the rights of the people“; the eighth amendment to the American Constitution borrows its language from the 1689 English Bill of Rights; Article IV makes reference to the “privileges and immunities” enjoyed by Citizens; and the Ninth Amendment holds that the enumeration of express rights does not mean the denial of others “retained by the people“. Thus, while the American constitution is transformative in its establishment of a new system of governance based on an idea of individual suffrage and functional separation of powers (See Articles I – III), its Bill of Rights is conservative in the sense that it seeks to write into law the “traditional” liberties enjoyed by the People, and seek recourse to established values in interpreting the scope of those liberties. We can now understand why it made eminently good sense for Justices Powell and McReynolds to engage in the kind of argument they did (and see also District of Columbia Heller (Second Amendment) and Crawford Washington (Sixth Amendment).

But if the American Constitution sought to entrench existing societal values of a largely homogenous culture against governmental invasion, the Indian experience is radically difference. Our constitution was framed at the moment when two centuries of colonial rule were coming to an end, when the break was being made not only with an alien ruler, but also, in some sense, with an alien ethos imposed upon society. Our bill of rights, therefore, isn’t conservative in the sense that the American bill of rights is, quite simply because there was nothing to conserve

The case of post-colonial Constitutions raises a more complex issue, however, because as we well know, nationalist independent movements (and ours is no exception) are substantially motivated by a narrative that seeks to regain a pre-colonial past, whether real or imagined. Now, if the objective of an independence movement is a call to return to the values that animated such a past, then this is one sense in which a potential post-independence Constitution could be conservative – seeking to conserve not its colonial heritage, but the heritage that existed before colonisation; i.e., a return to the past, but a discontinuous past. The classic example of this approach is found in South Africa. In v. Makwanyane, the South African Constitutional Court held the death penalty to be inconsistent with the new Constitution, and referred, in particular, to the constitutional value of “ubuntu“; ubuntu has been defined as an “ancient African worldview” that approximates what we would understand as “solidarity”. The Constitutional Court’s invocation of it, therefore, is precisely the call to the past and a reference to societal values that we have found, in a different avatar, in the American.

Now the case of India, I submit, is even more difficult, because not only does our Constitution mark a decisive repudiation of the colonial past by establishing a parliamentary democracy, but many clauses in our Bill of Rights also seek to abolish especially pernicious and invidious aspects of our society that were distinctly non-British (Ambedkar was particularly expressive on this point). See, for instance, restricting entry to temples and other public places (Article 15(2)), untouchability (Article 17) and bonded labour (Article 23), to name just three.

What, then, does our Constitution seek to conserve, and what does it seek to transform? Let us begin by noting that the question is vitally important, because Bobbitt’s ethical argumentation has found its way into some of the Supreme Court’s important opinions. We saw, earlier on this blog, how in Rangarajan the Supreme Court made express reference to enduring “Indian” values in the context of film-censorship; and how, in Ranjit Udeshi, it read Article 19(2)’s morality exception to free speech as referring to “public morality, and accordingly upheld a ban of Lady Chatterley’s Lover. And we have seen how the same arguments relying upon “Indian culture” and “Indian values” have been made before the High Court – and then the Supreme Court – in the ongoing Naz Foundation litigation. I do not argue here that the Court’s conclusions were wrong: I argue only that before invoking the values of an eternal, unchanging India (and entering the minefield of defining an “India” and “its” values in the teeth of near-unanimous historical skepticism), the Court needs to establish the legitimacy of that form of argument. It needs to show that a Constitution which is expressly transformative in its abolition of “Indian” values such as untouchability and religious discrimination (imagine a law that stifles the free speech of untouchables, which the government then attempts to justify on 19(2) grounds of public morality!) is nonetheless conservative where values coming from an identical source pertain to homosexuality or pornography. And that, in turn, requires a detailed excursion into the history of our independence movement, and more importantly, into the philosophy (or philosophies) of the Constituent Assembly Debates. In other words, we cannot have a satisfactory interpretive theory of our Constitution without understanding its conservative and transformative aspects, and that in turn requires an understanding of history and of the political theory of the Debates. As Lord Denning recognised long ago, good constitutional lawyers must also be good historians and good political philosophers!

Indian Medical Association v UoI’s structural reading of Article 15: Did the Court go too far?

Readers will recall that we have defended two readings of Article 15 that would militate against a textual-originalist approach to the Constitution: the Delhi High Court’s reading of “sexual orientation” into “sex” (here), and a hypothetical problem of inter-sectionality (here). We justified both readings on two grounds: first, a structural reading of the Article 15 in the broader context of Part III reveals that the Constitution subscribes to something we called the non-discrimination principle, i.e., “government cannot discriminate on the basis of essential aspects of any individual’s private and public identity (i.e., the series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change.” Both sexual orientation and inter-sectional positions fall within this category. And secondly, both readings are grounded in an intelligible interpretation of the text of Article 15.

In our previous posts, we focused primarily on the non-discrimination principle, but here I would like to pause briefly at the second argument. As we have observed before, it is crucial to remember that structure flows from text. It is not – as Mathew J. and Justice Holmes both observed in related contexts – a brooding omnipresence in the sky; it is firmly tethered to text, to history, to constitutional and political tradition, and to precedent. The non-discrimination principle is derived from a close reading of the specific categories listed in Articles 15, 16, 17 et al, raised to a level of abstraction that unites all of them without doing violence to any, and possesses the scope for bringing in analogous categories – that, again – it must at least be possible to support through text. A contrary position runs the grave risk of opening the floodgates to judicial legerdemain, where judges infuse into the constitutional text values that are their own, and not the Constitution’s.

Keeping this in mind, let us examine the Supreme Court’s opinion in its recent 2011 case, Indian Medical Association v. Union of India. Running into 160 pages of the judicial reports, IMA v. UoI is a long and complex case, dealing with a host of issues ranging from affirmative action, minority rights, the proper interpretation of Article 19(1)(g), the compatibility of Article 15(5) with the basic structure, and the role of the directive principles (and we shall have occasion to discuss this case at length when we discuss affirmative action). For the moment, let me focus, however, on one particular holding of the Court, that can be found in paragraphs 112 – 114. Briefly, the Court held that a private, non-minority higher educational institution that admits students only on the basis of their scores in an entrance test is in violation of Article 15(2). Here’s how, in three steps:

Article 15(2) states, in relevant part:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to… access to shops, public restaurants, hotels and palaces of public entertainment...”

Step One: Referring to certain comments by Ambedkar in the Constituent Assembly Debates, the Court read the word “shop” in a manner broad enough to include educational institutions (paying for and receiving a service). This brought educational institutions within the ambit of 15(2). For the purposes of argument, let us accept this as correct.

Step Two: The Court observed that entrance tests operate so as to discriminate against students who hailed from socially and educationally backward backgrounds. For the purposes of argument, let us accept this as correct as well.

Step Three: The Court then noted:

“There are two potential interpretations of the use of the word ‘only’ in clause (2) of Article 15. One could be an interpretation that suggests that the particular private establishment not discriminate on the basis of enumerated grounds and not be worried about the consequences. Another interpretation could be that the private establishment not just refrain from the particular form of overt discrimination but also ensure that the consequences of rules of access to such private establishments do not contribute to the perpetration of the unwarranted social disadvantages associated with the functioning of the social, cultural and economic order.

Et voila! What Articles 15(1) and (2) prohibited was not just invidious discrimination on enumerated grounds, but also the consequences of such discrimination (in large part, social and educational backwardness); thus, any action that contributed to maintaining such social and educational backwardness fell foul of the Article 15 prohibitions.

Now, it is submitted that the word “only” can mean many things (and indeed, we plead guilty to having played fast and loose with the phrase “any of them” earlier on this blog); but in no circumstances, twist, stretch, bend or contort the word as you may, can it bear the stress the Court has put on it here, in the context of the sentence in which it has been used. The Merriam-Webster dictionary, for instance (and I invoke a dictionary with all due caution) lists four possible uses of the word “only”, the first two of which are applicable but do not support the Court’s conclusion, and the last two are not germane to the context.

Yet be that as it may, there is a more serious objection to be made. Let us agree that the object of Article 15 is to prevent the further entrenchment of exiting inequalities by prohibiting forms of discrimination. But if that was all that was at stake, the Constitution could simply have said that. Imagine a hypothetical Article 15: “all forms of discrimination that serve to perpetuate existing inequalities and entrench social and educational backwardness are hereby prohibited.” But that isn’t what the text says, and that isn’t all there is to it, because the Constitution also specifies the manner in which that object is to be achieved by laying out specific, proscribed categories of non-discrimination: caste, religion, place of birth, sex etc. In other words, the Constitution specifies the goal through the path.

And nor is this devoid of logic. As we have discussed before, what unites the categories that we find in 15, 17, 18 et al – caste, sex, untouchability and so on – is not only are they forms of private identity that one is born with and is more or less powerless to change, but that they are an essential part of one’s public identity – that is, the labels that our society imposes to classify and categorise its subjects. It is these societal labels, by virtue of being societal labels, that have been historically responsible for the worst and most invidious form of discrimination. And we can now see why the Court’s incorporation of social and educational backwardness into Article 15 is structurally flawed – not only is it controversial whether social and educational backwardness fits within the “born into and powerless to change” category, but more importantly, it is at best a fluid and amorphous set that in no way tracks the societally-imposed clarity and rigidity of sex or caste or race.

Now we may not agree with this logic. I do not myself; Article 15 misses a trick, I think, by failing to include “class”, a fundamental driving force of discrimination over the last two centuries; and it ignores, I believe, the arbitrary role of money in blocking access to goods and services. Recent scholarship has also cast doubt over the rigidity of categories such as race and sex. But that is besides the point: the story we are telling is the story of our Constitution, and not that of our individual convictions and values – and the most plausible story that takes into account text and structure is one that the Court, it is submitted with respect, does not keep faith with.

As a final structural point, we may also note that where the Constitution wishes to provide for socially and educationally backward classes, it has done so expressly (Articles 15(4), 15(5), 16(4)). Indeed, the First Amendment inserted Article 15(4) into the Constitution precisely in order to overcome the Champakam Dorairajan decision, where the Court struck down legislation on grounds of a 15(1) violation, rejecting an argument (then based on the DPSPs) that it promoted the interests of socially and educationally backward classes. By now reading that very same category into 15(2) (and therefore, by extension, 15(1)), the Court repudiates both its own past holding, as well as the legislature’s constitutional response to it, and thus makes a break with history that it fails to justify.

We part ways, therefore, with the Court, on its interpretation of Article 15(2); nonetheless, it is gratifying to note that the Court engaged in explicitly structural analysis (saying so directly at one point), which we have defended before as the best method of constitutional exegesis. There will, of course, be disagreements over outcome; but it is far more important that the Court identifies and follows a distinct, defensible and attractive analytical method when it adjudicates cases of a constitutional nature. Hopefully, in that respect, IMA v. UoI will serve as precedent to build upon.

The Negative Voting Case in Context: Exploring the Interface between Elections and Free Speech – I

In our analysis of the Supreme Court’s recent decision on the right to cast a negative vote, we argued that the central importance of the judgment lies not necessarily in its immediate impact upon the conduct of elections in the country, but its doctrinal reinforcement of the conceptual connection between voting and Article 19(1)(a). Recall that the Court held that the right to vote was only a statutory right, but the freedom of voting (effectively) in a free and fair election was a 19(1)(a) exercise of the freedom of speech. In other words, as we discussed, the modalities of voting (procedural regulations dealing with the time, place and manner of voting, and substantive regulations dealing, for example, with age eligibility) could be regulated by statute, but the act of voting itself is protected by 19(1)(a).

Yet why, it might well be asked, did the Court need to go into 19(1)(a) given the existence of Article 326, which specifies that elections to the House and the Assemblies will be on the basis of universal adult suffrage? There are at least three good reasons for so doing.

First, Article 326 assumes, but does not guarantee, the existence of elections in the first place. It provides that, given election to the House and Assembly, universal suffrage is the rule to be followed, but in itself, does not prevent the government, for instance, from not holding elections at all. Therefore, a separate constitutional foundation is needed.

Secondly, a secure constitutional foundation is needed to prevent politically motivated discriminatory voting laws that may or may not be captured by Articles 14 or 15. In his excellent book, The Right to Vote: The Contested History of Democracy in the United States, Alexander Keyssar details a whole host of legislative measures, spanning more than two centuries of American history, designed to restrict the vote in a manner that did not offend the Fourteenth Amendment’s prohibition of race-based discrimination. Laws excluding voters on the grounds of race, caste, sex or any of the Article 15 prohibitions are easy enough; but the history of the United States shows us that literacy tests, onerous residence requirements, property qualifications and a poll tax, to name just four, were regularly deployed as anti-vote weapons, and we ignore this history at our peril. It may well be argued that such such measures are prohibited by Article 14, but recall that Article 14 only requires intelligible differentia and rational nexus with policy – a fairly low standard of review (in addition to Naz Foundation’s specification of a legitimate constitutional purpose); and again, what American history shows us is that it is possible to construct arguments that would putatively be “rationally justified“: an argument, for instance, that only those who can understand the affairs of government are in a position to make an informed choice, and thus, only literates should be allowed to vote. Property qualifications were long justified on the ground that only those who owned property had a stake in the affairs of government. Ridiculous as these arguments sound now, we would do well to remember that the poll tax needed a constitutional amendment as late as 1964 before it was finally weeded out of American politics – and not only that the opportunities for restricting the vote in a manner that escapes Article 326 are manifold (see, for instance, the controversy over the present Voter ID laws in the US), but Articles 14 and 15 do not provide an adequate safeguard. In any event, it is questionable whether a Court, on finding a violation of Article 326, would be entitled to strike it down, an issue that dissolves into irrelevance if the vote finds a home in Part III.

Thirdly – and perhaps most importantly – some of the central issues around the vote aren’t Article 326 issues of voter discrimination at all, as recognised by the Court in a series of judgments. In Union of India v. Association for Democratic Reforms, the Supreme Court was called upon to adjudicate upon an appeal by the Union from a Delhi High Court’s decision directing the Election Commission to make it mandatory for candidates to reveal, inter alia, any prior criminal record, assets and educational qualifications. The Union’s principal contention was that the conduct of elections was regulated by the Representation of Peoples Act and the rules made thereunder, and so the appropriate remedy for the Delhi High Court was to direct the petitioners to approach the legislature for suitable amendments, and not the Election Commission to implement regulations not found in the Act or the Rules.

The Court addressed this contention in two stages. First, it invoked a series of precedents to hold that Article 324 of the Constitution vested a very wide discretion in the Election Commission regarding the conduct of elections, including imposing requirements not excluded expressly or by necessary implication by the legislature in the Representation of Peoples Act. This addressed the threshold objection of competence; but not only did the argument justifying the particular directions in this case remain to be made, but clearly, if the Court stopped at this point, it left itself open to the legislature undoing its decision by simply amending the RP Act (as Indira Gandhi had famously done before).

In other words, if the contours of the right to vote were exhausted by the Representation of Peoples Act as limited by the non-discriminatory provisions of Article 326, then while the Court could no doubt invoke its necessary-implication argument to hold for the petitioners in the present case, it would leave the question of politicians’ antecedents on an extremely weak footing legally. The Court therefore located the specific issue within the Constitution and, in particular, Article 19(1)(a):

“Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process.”

Of course, there was no direct case on the point. So the Court examined 19(1)(a) precedent more generally, used it to derive the philosophy of free speech that undergirded 19(1)(a), and then applied it to the case at hand. Citing Indian Express Newspapers (newspaper regulation), Romesh Thappar (censorship on grounds of national security) and Cricket Association of Bengal (television broadcasting) – cases that we have discussed previously on this blog – the Court noted that the common theme underlying these judgments was the centrality of 19(1)(a) to democracy. That is, 19(1)(a)’s central philosophical commitment to democracy was what informed its implementation in specific, concrete circumstances. Hence:

“Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must.”

There are two moves the Court makes here: first, from the purpose of 19(1)(a) being to preserve democracy, it concludes that the act of casting a vote in a election is a form of expression Article 19(1)(a) protects. Secondly, it holds that not only does Article 19(1)(a) protect the vote, it also protects – or mandates – all incidental acts that make the vote meaningful (in this case, an informed electorate aware of the antecedents of the candidates). In other words, the Court is not protecting the vote per se, but protecting the vote inasmuch as it is essential to sustaining democracy, and democracy itself is defined broadly to require not only free and fair elections, but free and fair elections with an informed electorate.

We are now in a position to understand the manner in which the Negative Voting case was grounded in precedent – it follows, more or less to the letter, the judgment and logic of UoI v. Association for Democratic Reforms. In the next post, we shall discuss the impact of this case upon the legal landscape through subsequent decisions on similar issues, and address other questions of substantive theoretical justification.

SPICTR: A new blog

This is an exciting time for Indian constitution law, and for those engaged in thinking about Indian constitutional law and philosophy. Recent judgments such as the Negative Voting Case, and pending cases such as Naz Foundation and the recently announced re-hearing of the Right to Education Case are engaged in challenging old premises, exploring new ones, and traversing and remaking our constitutional terrain. It is a great window of opportunity to discuss and debate our constitutional principles, and so we welcome the creation of another forum to do just that – the Society for Promotion of Indian Constitutional Thought and Research (SPICTR) blog, here. Here’s hoping for many fruitful engagements, as our Constitutional project continues its progress.

Is there an Interpretive Methodology for Construing Colonial-era Statutes?

Much of the focus on Naz Foundation has centred upon how S. 377 of the IPC (the impugned provision that outlaws homosexuality) is a “colonial-era law“. That much is true. It is also true that, assuming the values of our colonial government were fundamentally different from the values that animate our democratically elected legislature, there is a strong case for legislatively repealing S. 377. However, what does the colonial nature of legislation imply for the Courts that are tasked with interpreting it, or adjudicating upon its constitutional validity? A change in values cannot, in itself, be a guiding principle, because surely the best judgment of societal values – at least in theory – will be made by the institution that is most accountable to the people. There is, therefore, a problem of institutional competence in the Court substituting its analysis of public values for the legislature.

At the same time, however, there is an important question of process to consider here. What is it that we value about democracy, and why do we consider democratic decisions presumptively legitimate? It surely cannot be simply because they are taken by a majority vote; as Isaiah Berlin rightly pointed out in his seminal Two Concepts of Liberty,  there is no real difference in being oppressed by a minority and being identically oppressed by a majority. Democratic theory scholars, therefore, focus on the manner in which decisions are arrived at. Dworkin, for instance, argues  that a functioning democracy must accord equal concern and respect to all members of the polity by ensuring that they have a voice in, a stake in, and an independence from, collective decisions (see the Preface to Dworkin’s Freedom’s Law). In other words, what is key here is participation: if I am allowed to participate in the decision-making process in a way that my interests and autonomy are given appropriate respect, then I can reasonably accept the final decision as being, in a sense, my own decision (and therefore binding upon me), even though I might substantively disagree with it.

What this implies is that the legitimacy we accord to democratic decisions is conditional – conditional upon substantive participation by the members of the polity. In a famous book called Democracy and Distrust, Harvard scholar John Hart Ely made this the central idea of his theory of judicial review. Ely recognised the centrality of process to the democratic legitimacy – and he understood that the democratic process often functions – in real life – in a way that is less than perfect. A process of periodic, nationwide elections could end up ensuring the systematic exclusion of “discrete and insular minorities” (a phrase that has its genesis in Footnote Four of the US Supreme Court’s famous Carolene Products case). And this is where the Court would step in – judicial review was consistent with democracy insofar as the Court’s decisions voiding or otherwise interfering with legislative choices played essentially a “representation reinforcing” role. Ely’s theory of democracy, therefore, is essentially a representative-participatory theory that combines majoritarianism with judicial protection of minority rights on the basis of their exclusion from meaningful participation.

The shape of the argument will now be evident: colonial-era statutes, being passed by the dominion legislature, suffer from a fundamental lack of democratic legitimacy, being the decisions of a distinctly unrepresentative process. But here’s the catch: the Indian Constitution has an express savings clause for dealing with precisely this issue. According to Article 372(1):

“… all the laws in force in the territory of India immediately before the commencement of this Constitution… shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”

So even if the democratic legitimacy of colonial laws was suspect, the Constitution itself, the ultimate source of law, validates them through inaction: parliament confers democratic legitimacy on colonial legislation by omitting to repeal them. This makes eminently good sense both as a matter of principle and pragmatically: as a matter of principle, legislative imprimatur can be given both by commission and by omission (as long as the omission is intentional, as it is here); and practically,  it would have been an administrative nightmare in 1947 to wipe out all laws and start from a clean slate.

So that seems to be the end of the matter. Article 372 indicates that colonial-era legislation is to be treated no different from ordinary legislation merely by reason of its origin. Yet, is it? Let us consider the following illustration:

Griswold v Connecticut and Roe v Wade are two famous American decisions that, by locating an “interstitial” constitutional right to privacy not found in the express words of the American Constitution, struck down laws prohibiting contraceptives and abortion respectively. Critics and defenders of the decision have divided over whether a right to abortion as a facet of the right to privacy can actually be extracted out of the text and structure of the Constitution. However, in his book, America’s Unwritten Constitution, Professor Akhil Amar offers a different argument: he points out that the laws at issue in Griswold and in Roe were both passed before the Nineteenth Amendment to the United States Constitution, that first accorded the right to vote to women, in 1920; in other words, both legislations were passed at a time when women could not vote. The Nineteenth Amendment recognised that not allowing women to vote was fundamentally illegitimate, and had always been so. Therefore, by virtue of this reason, laws before 1920 were undemocratic because unrepresentative; and in true John Hart Ely-esque fashion, the Court’s decisions in Griswold and Roe can be seen as protecting the interests of those who were blocked from participating in the decision-making process that gave rise to the impugned laws. 

But here’s the problem: by this logic, every law – and not just Connecticut’s anti-contraceptive law and Texas’ abortion statute at issue in Griswold and Roe – before the Nineteenth Amendment is illegitimate. Yet what Article 372 of the Indian Constitution makes explicit, is implicit more generally: in the ninety-three years after the Nineteenth Amendment, if certain laws haven’t been repealed, surely that means that whatever their democratic status before, they have been impliedly accepted by a democratic, participatory legislature’s failure to repeal them.

Yet let us now make a distinction between two kinds of law: laws that, while based on an exclusionary decision-making process, have little or nothing to do with the groups that have been excluded (e.g., contract legislation); and laws that directly affect the interests of excluded groups (e.g., an abortion statute). The implication-by-failure-to-repeal argument works well for the first kind of laws; but there are at least two reasons to question it for the second: first, that by reason of neutrality, the first kind would have come out much the same regardless of exclusion; and once the exclusion issues are corrected, because these laws are of general application, repealing them if they are generally inconvenient would not be too difficult. For the second kind of laws, which, because of their particularity, would be affecting a specific group, it is the group would then have to make the move to have them repealed. This explains why – even in the absence of Article 372 – we might consider the Indian Contract Act presumptively constitutional after 1947 – arguably, the unrepresentative nature of the colonial legislature did not significantly affect the law, and in any event, it would be very easy to have it repealed if it was no longer in conformity with the democratic will. These conditions are absent for the second kind of – interest-affecting – laws.

And secondly – and much more importantly –  if the second type was allowed to stand, then – in the words of Ely – you are essentially imposing a double-burden upon the once-excluded group (see p. 169, Democracy and Distrust): not only did they have no say in the framing of the original legislation that touched upon their interest, but now the burden is being placed upon them to drudge up the necessary parliamentary support to have them repealed. Not only is this more difficult because these laws are of a specific-interest type, but purely as a matter of fairness: surely it is far more equitable to reverse the onus: it should be for those who wish to maintain the legislation after the representation issued have been resolved, who should have to make the effort to do so. Here is Ely on point:

To put on the group affected the burden of using its recently unblocked access to get the offending laws repealed would be to place in their path an additional hurdle that the rest of us do not have to content with in order to protect ourselves – hardly an appropriate response to the realisation that they have been unfairly blocked in the past.

We now have strong reasons of democracy to question the presumptive constitutionality of pre-1947 laws of the second type; there is no doubt that S. 377 falls within this category, because it fundamentally affects the interests of a specific group (homosexuals), and was passed without their representation (some would argue that homosexuals are even now a discrete and insular minority, in Ely’s terms, but we need not go into that at the moment). Does Article 372 stand in the way? No, it doesn’t – because we are not arguing that S. 377 is impliedly repealed. What we are arguing, however, is that S. 377 should not be accorded the standard protection of the presumption of constitutionality – because for all the reasons above, the presuppositions that justify that presumption are conspicuously absent.

Let us summarise the argument in the following steps:

a) S. 377 is a piece of legislation that was passed without representation from the constituency that it negatively impacts, i.e., homosexuals; therefore, it cannot be treated as presumptively constitutional

b) After the entry into force of the Constitution, let us assume that homosexuals were fully represented; nonetheless, to argue that S. 377 became constitutional by virtue of the (now representative) legislature’s failure to repeal it imposes an unjust burden upon the previously unrepresented homosexuals

c) Article 372 provides a barrier to treating the law as void, but provides no barrier to removing the presumption of constitutionality

This, I would submit, is how the colonial-era nature of S. 377 is constitutionally relevant to the Court’s enquiry in Naz; and further, how the Court should – as a matter of principle – approach other legislation in which the law in question is a pre-1947 law.

Free Speech and Copyright – III: A brief addendum on 19(1)(g)

If – as we have argued – constitutional values ought to inform our interpretation of the fair dealing provision, then what, it might be asked, do the arguments in the previous two posts mean for Article 19(1)(g), which guarantees the freedom of occupation, trade or business? Shouldn’t that play a role in the interpretation of the Copyright Act as well, because an unrestricted permission to photocopy will certainly have an impact upon the profits of the publishing companies? The answer is yes, of course it should. And of course, 19(6), that permits reasonable restrictions in the interests of the general public, will play the role of a counterbalance. Now, I would submit that there are two considerations that ought to be borne in mind when analyzing the 19(1)(g) issue in this case. The first is that in a series of judgment, from Mohini Jain through Unnikrishnan and most recently in Right to Education, the Court has made it clear that the historical rootedness of education as a public service and a charity throughout Indian history implies that while it is protected under Article 19(1)(g), it does not enjoy the same levels of protection as other businesses – especially when it comes to the question of profit. What this means is that a 19(6) balancing test would give shorter shrift to profit than it would otherwise do (this argument is buttressed by Article 21A’s constitutional guarantee of education although that, of course, is limited in its scope to the ages of 6 to 14 and so can, at best, play only an indirectly interpretive role in this enquiry, as a guiding principle). And secondly, the public interest in this case – cheap access to educational materials in a nation that still suffers from grinding inequality and poverty – is close to overwhelming. Of course, it may be argued that the unrestricted photocopying will drive OUP, CUP and Taylor&Francis out of business, and so do a disservice to the public interest by constricting the availability of educational materials. That is a judgment for the Court to make, although my intuition is that a close analysis of the financial statements of these companies will reveal those fears to be – largely – groundless.

Copyright and Free Speech – II: Constitutional arguments against OUP et al in the DU Photocopying Case

In the previous post, we discussed the background of OUP, CUP and Taylor & Francis’ lawsuit against Delhi University and the Rameshwari Photocopying Service. Let us now turn to Article 19(1)(a), which guarantees the freedom of speech and expression. If there is one thing that our cases agree upon, it is that the main justification for Article 19(1)(a) lies in its importance to maintaining democracy. That, in itself, tells us nothing, however, because it is an open question what democracy is, and how free speech contributes to maintaining it. Let us therefore discuss the philosophy of free speech itself, in the context of democracy.

Free speech has been extensively discussed on this blog before. The post most relevant to our present discussion may be found here. For the purposes of simplicity, I will posit two possible philosophical approaches to free speech, that I will label the “market-based approach” and the “social good approach”. The market-based approach, that may be found in the writings of John Stuart Mill and in the judicial opinions of Oliver Wendell Holmes, takes the existing structure of market-relations as a given, background fact, requires complete freedom of speech within the structure of that market, and disallows governmental intervention to alter the existing pattern of relations. For instance, suppose that Anil Ambani and I both want to broadcast public messages of support for the rival candidates in the next parliamentary election. Mr Ambani’s wealth allows him to buy advertising space on television and upon billboards to implement his wish; my (lack of) wealth does not allow me to do so. Under the market-based approach, if the government intervenes to – for example – limit the amount of advertising time or billboard space that Mr Ambani can buy in order to ensure that others can use that space as well, it would be an impermissible restriction upon his freedom of speech. My counter-argument that my freedom of speech is being violated by the current state of affairs would be rejected on the ground that it is not my liberty that is being restricted, but – in the words of Isaiah Berlin – my ability to exercise it, because of my lack of wealth. Cases such as Sakal Papers and Bennett Coleman are examples of the Supreme Court endorsing the market-based approach, where it disallowed the government’s attempts to bring down barriers to entry in the newspaper market by placing restrictions upon big newspapers. Mill’s claim – and one that has been echoed down the years – is that such an approach is maximally conducive to democracy, since it involves complete and unrestricted free play of ideas (the market itself is not treated as a restriction).

The social good approach, on the other hand, does not take the existing market as given, but questions the justice of the initial distribution of resources that directly affects the exercise of free speech, and most importantly, treats the market as we would treat a law explicitly banning all speech – as a potential restriction upon the freedom of expression, that must be judged on its own terms. The overall argument for this approach, that advocates the connection between freedom and barriers to market entry, can be found in this path-breaking article by Professor G.A. Cohen, called Freedom and Money, here; it is impossible to sum it up here, but very briefly, if I want to access a good but don’t have money to buy it, and I try to access it anyway, the government, acting under the laws of property and sale of goods (for example), will physically restrain (or punish) me. It is in that sense that there is an infringement of freedom.

So when Mill argues, for instance, that an open marketplace would guarantee the contestation of all possible ideas and the survival of the best, the free-speech-as-social-good approach accepts his goal, but rejects his premise: the purpose of free speech is indeed to provide an environment in which there is as wide a range and diversity of ideas as possible, available to the public. The market is instrumental towards achieving this goal, and not an end in itself.

And it is this approach that, it is submitted, the Supreme Court has endorsed in a majority of its cases. It is found in the dissenting opinion of Mathew J. in Bennett Coleman, where he argued that: “an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion.”

In the Cricket Association of West Bengal Case, the Court observed: “That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject.

And in Union of India v. Motion Picture Association, the Court observed interpreted Article 19(1)(a) as aimed at “promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues.”

     And perhaps most significantly, in LIC v. Manubhai D. Shah, by effectively holding in favour of a “right of reply” in the case of contentious newspaper articles (even in an in-house newspaper), the Court noted: “fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions.”

Let us now make the argument. Article 19(1)(a), as the Court has held repeatedly, is most fundamentally about democracy. Freedom of expression is essential to maintaining a functioning democracy. The Court has endorsed a rich, substantive conception of democracy, which envisages a broad and diverse range of ideas open and accessible to the public. The freedom, under Article 19(1)(a), is not just the right of a speaker to speak his mind, but a community right to access information, an individual right to be informed, and the social good of a vibrant and engaged public. And lastly, this freedom is not exercised within the constraining influence of existing market relations that determine access to the means of communication and information, but contrariwise, it is the market relations that must be judged – and if necessary, modified – to comport with the right since, like any other human or governmental action, they too can operate to restrict it.

The last step is easy enough. The educational system is the most important avenue for access to knowledge and ideas. There is no substitute for it. Unaffordable book prices constitute a heavy barrier to access. It doesn’t matter – for the purposes of the present argument – that the prices are imposed by private entities, because – as we have discussed above, that is still treated as an interference with freedom. In other words, if I can’t access crucial educational materials because of a government ban and if I can’t access them because of prohibitively high prices, in both cases, my freedom is being infringed (see G.A. Cohen’s argument, discussed above, for why this is so) The difference is that in the former case, I can sue the government to comply with its 19(1)(a) obligations, but I cannot sue the publishing houses for the same, since the Constitution does not permit us to enforce the fundamental right against the publishing houses. But that isn’t the argument anyway: because what is at stake here is the interpretation of a law (the fair dealing provision in the Copyright Act). It is submitted, therefore, that the Court ought to treat unaffordable book prices as impediments to a full exercise of Article 19(1)(a) rights and freedoms (as elaborated above), and interpret the Copyright Act in a manner that is most conducive to removing those barriers. This approach would be consistent with accepting that the actions of private parties and the structure of market relations act as barriers to freedom (which they do), and also avoid the constitutional impermissibility of imposing fundamental rights horizontally.