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.

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Filed under Constitutional interpretation, Non-discrimination, Structural analysis, Textualism

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