Reservations, Equality and the Constitution – II: The Early Cases

In our first post on reservations, we argued that the text and structure of the Constitution suggests that the vision of equality embodied in Articles 14, 15 and 16 is colour-blind: that is, it views as a violation of equality any governmental attempt to classify individuals on the basis of certain prohibited categories, like caste, race, sex etc., even if such classification is ostensibly for a benign purpose, like remedying past inequalities. It is important to understand that formal equality and colour-blindness are different things. Formal equality merely calls for treating like cases alike, on pre-determined criteria of likeness. Colour-blindness, on the other hand, is a deep substantive vision of the ideal society, motivated by a strongly individualistic bent that insists on considering individuals only as individuals, when they are subject to any government-mandated distribution of benefits and burdens.

The Supreme Court’s early cases emphatically affirm the colour-blind view. State of Madras v. Champakam Dorairajan is the first, decided by a 7-Judge bench in 1951. The Madras government’s policy, which stipulated admission to medical and engineering colleges in a proportion, based upon caste and religion, was challenged, inter alia, under Article 15(1) [recall that 15(4) did not exist at the time]. The State made an argument that reservations in educational institutions were justified under Article 46, part of the Directive Principles of State policy, which required the State to “promote with special care the educational and economic interests of the weaker sections of the people.” The Court rejected the argument on two grounds: first, obviously, that the Directive Principles were not enforceable.  Secondly, however, it argued that if reservations could be justified under Article 46, this would make 16(4) redundant. It logically follows, then, that Article 16(4), which allows for reservations under the broader Article 16 scheme of equality of opportunity, is an exception to Article 16(1), and that 16(1) itself does not contemplate reservations in its guarantee of the equality of opportunity – because if it did, finding another source for the government’s reservation-making power, in Article 46, would not make Article 16(4) redundant. In other words, the redundancy argument works only if we assume that Article 16(4) is the source of the government’s power to make reservations, and from that it follows that Article 16(1) cannot be. This, precisely, is the ideal of colour-blindness that we discussed in the last post: even for remedial purposes, equality under the colour-blind theory does not permit classification on prohibited bases, and such classification can be justified only by carving out a specific constitutional exception (16(4)). Since Article 15 had no parallel 15(4), the Court struck down the Madras Government’s policy.

Directly in response to the Supreme Court’s judgment, the Constitution was amended to insert Article 15(4). Article 15(4) reads:

“Nothing in this article… shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

Apart from a few differences that are not relevant at this stage, this is framed much like Article 16(4). And much like Article 16(4), the language – and in this case, the specific history, Article 15(4) suggests that it is an exception to the broad equality provision under 15(1), to allow the government to do something it could not otherwise do – classify individuals on the basis of sex, race, caste etc., for certain specific purposes (the advancement of socially and educationally backward classes, i.e., remedial affirmative action).

The logic of Champakam Dorairajan was at work in the next Supreme Court case on point, The General Manager, Southern Railway v. Rangachari. Among the many questions at issue in Rangachari, the question also was whether the Article 16 scheme allowed for reservation in promotions. Although the Court held that it did, it also observed that Article 16(4) – restricted as it was to “appointments“, did not cover the full spectrum of employment possibilities that were covered by Articles 16(1) and (2). In particular, the Court held that “in matters relating to salary, increment, gratuity, pension and age of superannuation there can be no exception even in favour of backward classes.” (Paragraph 22) We have already explained above why this approach is consistent with the colour-blind vision.

Specifically, the practical effects of adopting a colour-blind interpretation of Articles 15 and 16, and treating 15(4) and 16(4) as exceptions, were felt in M.R. Balaji v. State of Mysore, a Constitution Bench decision from 1963. In that case, the State of Mysore , fixed 68% reservation for “socially and educationally backward classes” as required by Art. 15(4). These backward classes were identified on the basis of caste. The policy was struck down by the Court on two grounds, both of which underscore the character of Article 15(4) and its relationship with 15(1). First, the Court rejected the sole use of caste as a determinant of social and educational backwardness, on three grounds: first, that class does not equate to caste, and an identification based on caste to choose a class may not always be logical; second, it may result in perpetuating the vice of caste, which defeats the entire purpose of the provision; and third, there exist communities such as the Muslims and Christians, which do not recognize the caste system. The second reason is particularly crucial, because it assumes that the purpose of the Article 15 scheme is to achieve a society in which caste is legally and sociologically irrelevant (this is consonant with the drafting history, and Ambedkar’s idea that the reservation provisions would sunset in ten years). That, precisely, is a colour-blind society. There is, of course, a distinction between the ideal of a colour-blind society, and a colour-blind Constitution. The latter would not permit any classification unless specifically authorised by a provision such as 15(4) or 16(4), whereas the latter would, conceivably, permit classification in a narrow area where such classification was a necessary step on the road to eventual colour-blindness (a number of feminist theorists, for instance, argue that while their end-goal is to make sex irrelevant, that goal can only be achieved by present-day remedial action based on sex, to bring women up to a point where colour-blind legislative programs do not handicap them because of underlying structural inequalities).

Colour-blindness was also at play in the Court’s rejection of the 68% quantum. Since Article 15(4) was an exception, the Court held, the quantum of reservations permissible under it could not exceed 50% – because, logically then, the exception would swallow up the rule, the rule here being the colour-blind equality code under Article 15(1).

The logic in Balaji led the Court to hold unconstitutional the “carry forward” rule in its next case, T. Devadasan v. Union of India. The carry-forward rule holds that unfilled vacancies that have been set apart for reserved-category candidates are to be “carried forward” to the next year in addition to the already existing reservations, thus increasing the quantum or reservations in the succeeding year by the amount unfulfilled presently (to a limit of two years, in the case at hand). Following Balaji, the Court held that insofar as, because of the carry-forward rule, the reserve vacancies in any one year grew to exceed 50%, the rule was unconstitutional. In addition, the Court framed Article 16(1) in explicitly individualistic terms:

“… the guarantee contained in Art. 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointment to any office under the State… the guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the state is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled.” (Paragraph 22)

A closer analysis reveals that the carry-forward rule itself is implicitly framed in group-communitarian terms. The goal of carry-forward is to ensure that at a given time t, the work-force has a certain specified number of persons belonging to a particular community. The procedure of selection, and the classifications involved in it, are designed to achieve the end-goal of adequate group representation. As such, therefore, the Court’s striking it down in Devadasan was both unsurprising and doctrinally consistent.

Justice Subba Rao dissented. And his dissent was not just to the narrow holding of unconstitutionality in Devadasan, but a radical challenge to the entire conception of equality that we have been discussing thus far, and that the Court had (thus far) adopted as given over the course of fifteen years. Justice Subba Rao argued:

“Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it… that is why the makers of the Constitution introduced clause (4) in Art. 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in an what by the main provision but falls outside it. It has not really carved out an exception but has preserved a power untrammelled by the other provisions of the Article.” (Para 35)

Each of the underlined portions reveal the depth of Justice Subba Rao’s challenge to the dominant vision. In making 16 the specific application of a general rule of equality, he links 14, 16(1) and 16(4) – that is, reservations, equality of opportunity, and equality more broadly, are no longer at odds, but part of an overall coherent scheme. Thus, 16(4) transitions from being an exception to the rule in 16(1) and (2) to being an “emphatic” restatement of it. And thus, logically, the legitimising constitutional source of affirmative action is no longer 16(4), but 16(1). Or, in other words, the very concept of equality that the Constitution is committed to includes within it the guarantee of affirmative action. The shift is completed in Justice Subba Rao’s reference to the “uneven basic social structure“, which has rendered certain “communities” backwards. This is the classic statement of the group-subordination principle of equality that we discussed in the last post: status quo is structurally constructed to disadvantage communities, and insofar as individuals are part of those communities, they suffer structural discrimination. Remedial action aimed at communities, therefore, is not an exception to the general rule of equality, but serves to fulfill equality’s deep purposes.

Justice Subba Rao’s dissent had no immediate impact. In C.A. Rajendran v. Union of India, the Court continued on the straight and narrow path laid before it. We need not go into the complex facts of the case here; suffice it to say, broadly, that it was the absence of reservations that was challenged in C.A. Rajendran, on the ground that, far from being an exception to 16(1), 16(4) was itself a constitutional guarantee and a fundamental right. The Court roundly rejected this contention, holding that 16(4) was merely an enabling provision. In so doing, the Court mentioned the divergence between the majority and dissent in Devadasan, but refused to definitively reject Justice Subba Rao’s views. Implicitly, however, it certainly did so, because if 16(4) was, like Justice Subba Rao said, an emphatic restatement of 16(1), and if 16(1) included within its conception of equality the ideal of affirmative action, then reservations would indeed be a matter of right, because 16(1) makes it clear that “there shall be equality of opportunity.” This, unambiguously, is the language of right.

Thus, in the first twenty years of the Court’s equality-and-reservations jurisprudence, with the exception of a single lone dissent from Justice Subba Rao, a series of (large-ish) benches affirmed a colour-blind vision of equality in the 14-15-16 code. Justice Subba Rao’s opinion, however, was soon to play a transformative role in the Court’s jurisprudence, and it is that we will turn to in the next post.

 

 

Guest Post: Free Speech, Interim Injunctions and Media Guidelines

(In this guest post, Raag Yadava, a 2013 NLSIU graduate, analyses the High Court’s recent order restricting reporting of the sexual harassment allegations leveled by an intern against a former justice of the Supreme Court)

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The Delhi High Court, in an order dated 16^th January, 2014, granted Justice Swatanter Kumar (“SK”) an interim injunction in a suit for defamation (permanent injunction plus damages) filed against various media houses, the unnamed intern who made the allegations of sexual harassment and the reporter who sourced the information. (Note: the defendants were not permitted to file replies to the injunction application.)

The facts, briefly, were this: on 30^th November, the intern sent an affidavit to the Chief Justice of India complaining of sexual harassment by SK. (It is worth noting that SK’s stance is that this lady ‘was neither an intern nominated by the Supreme Court nor by the plaintiff himself.’ – see, paragraph 5 of the order). Discovering this complaint, from 10^th January onwards, various media houses published (on TV and in print) news of this allegation. Crucially, these reports named SK and appeared prominently (as headlines more often than not). These are some examples: “Another intern alleges sexual harassment by another SC judge”, “Justice S. Kumar … put his right arm around me, kissed me on my left shoulder … I was shocked”, “Sex taint on another former SC judge”, “Ex-judge Claims Green Plot in Sex Slur” etc.

The Court granted the injunction. In doing so, the Court considered the issue to be one of balancing the right of freedom of speech under Article 19(1)(a), on one hand, and administration of justice (or the individual’s right to “open justice”), on the other. Narrating the development of the law on prior restraints on press publication in Naresh Shridhar Mirajkar (1967), Reliance Petrochemicals (1988) and Sahara (2012), the Court begins with the observation that prior restraints are per se not unconstitutional, the devil rather lying in the details in which the restraint is crafted.

Thus next, at various instances, the Court considers the legal factors that permit exceptions to the otherwise unregulated norm of freedom of speech and expression of the press. Drawing on Reliance, at paragraph 38, and on Sahara and Mirajkar in paragraph 43, the Court considers this factors to be “an interference with the administration of justice”. Thus, “if … there exists a real and imminent danger that the continuance of the publication would result in interference with the administration of justice,” a prior restraint to the freedom under Article 19(1)(a) is justified. The Court also backs this standard by the recognition of the drafters of the Constitution, given that “contempt of court” – which includes the power to punish for obstructing the administration of justice – was included as an express restriction to the freedom under Article 19(2).

Then comes the question of what precisely ‘interference in the administration of justice’ means – a question previously considered by the Supreme Court. As in Sahara, the Court here notes the “obstruction of the justice … include(s) intrusion in right to have open justice unbiased by any public opinion (from a) publication which would give excessive adverse publicity to the accused … which may likely hamper the fair trial in future.” Thus, even if some amount of fairness can be attached to the publication, or where it appears to be fair, the Court’s reasoning implies that prior restraints may still be imposed.

Till this point, the Court’s reasoning is consistent with the approach of the Supreme Court previously. In such cases, the Supreme Court proceeds to examine on facts whether such “excessive adverse publicity” exists, and whether it “may likely hamper” fair trial. The Court in this case, however, adds another principle to this legal reasoning – that such prejudice “exists in the cases of persons who are seen with the eyes of public confidence and public faith like judges of the Supreme Court or the other superior Courts of justice.” Given that any aspersions cast on a judge reflect on the judiciary, the individual’s integrity and reputation is linked to that of the institution. Thus, for those holding public office, such allegations cast doubt on the “institution as a whole”. Facially, it does not cohere that an individual’s or for that matter, an institution’s interest in maintaining its reputation also justifies a prior restraint, so the Court links this to loss in public confidence to the right to open justice in these terms: “The person who is accused of such allegations is seen with extreme suspicion and the same also creates a kind of pressure of adverse public opinion which may affect his likelihood of getting fair trial or may lead to interference in the course of the justice.” There are two issues with this reasoning: the Court does not explain why “such” allegations would ipso facto affect a trial court, or what “such” allegations are. If by this, the Court means allegations against high ranking public officials, it would imply that since all allegations against public officials affect their institution’s integrity, a prior restraint is justified in principle without the need for any further examination on facts.

Let us parse this: if I allege that A Raja is corrupt and has allocated spectrum improperly, surely this leads the public to reflect on the Ministry of Telecommunication, and “such” allegations would justify a prior restraint. The Court’s answer – when it does ‘consider’ limited facts – comes in paragraph 53, noting that “the allegations made in the complaint have neither been examined or tested in any Court of law nor have they been proved … not any cogent evidence has been produced along with the complaint.” This, however, is unappealing. Either the Court means that no allegations can be published unless proved in a Court of law – which is a patently absurd conclusion. Or perhaps the Court means that to justify a prior restraint in an ad interim injunction, the Court hearing the matter would itself enter into the facts to see whether there is any element of truth on the basis of evidence. This is problematic not only because sexual harassment complaints (being by their very nature private acts) rarely if ever have “cogent (external) evidence”, but also because this would mean the press’ otherwise untrammelled and unfettered freedom of speech to publish daily and contemporary news would be subject to a half-baked appreciation of evidence by the Court, until the matter is finally heard and judgment pronounced several months later.

Curiously, the Court proceeds to abandon this line of reasoning altogether, concerning itself now with SK’s “impeccable reputation” as a judge who “has dealt with many important cases and has always protected and preserved the interests of justice.” Given this, the Court then records these observations, which are best quoted in full:

“56. Assuming for the sake of example that a false complaint is filed against the retired judge of high judiciary after his death by raising similar nature of allegations after the retirement of about 10 or 20 years. One would fail to understand that after his death who would protect his interest and defend the case in Court of law when he had in his career given landmark judgments and had a great name and reputation in bar and bench. These questions are to be examined by the Court when the fresh cases are considered 57. In view of the recent stringent provisions incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which provides for a mechanism of dealing with the cases of sexual harassment, this Court is of the opinion that strict view would have to be applied equally to both the sides, i.e. complainant as well as alleged accused specially in cases where the complaint is filed after the lapse of long period. Thus, this Court is also of the view that there should be a limitation of time for the purpose of filing of such complaints, otherwise no one would know when the complaint ought to have been filed and decided. Thus, a balanced approach has to be taken, particularly, in these types of matters. 58. In the present case, assuming the complaint filed by the defendant No.5 is found to be false after inquiry, then who would ultimately compensate and return the repute and sufferings of the plaintiff and mental torture caused to him and his family members.” (emphasis supplied)

Thus, the link between an injury to reputation and the right to open justice, crucial to satisfy the tests in Reliance etc, is forgotten by the Court, speaking solely of how harm to reputation is in itself the relevant factor. Equally, the Court’s remarks on how there “should” be a limitation on sexual harassment complaints seems entirely unwarranted in the facts of this case, and seems to bear no legal relevance to whether the administration of justice may be subverted.

Combing its reasoning till here, the Court finally concludes: (a) given there was only a “stray” allegation (the Court, here, has judged the veracity of the allegation, it seems, on the ground that there was only intern who alleged sexual harassment and not more), (b) there was a ‘delay’ of two and a half years in filing the complaint, (c) the allegations are being excessively published, (d) that such publicity is “destructive of (the individual’s and the institution’s) reputation”, grants the injunction. In line with the general trend, relying on ESN Software Pvt. Ltd., the Court extends the injunction to all non-party media outlets as well.

The injunction itself is found in paragraph 64 – the operative part of the order. It prohibits publication of any material highlighting the “allegation in the form of headlines, without disclosing in the headlines … that they are mere allegations”, and the publication of any photos of SK. The injunction thus curiously seems to fall short of what the reasoning requires. Paragraph 64 only prohibits allegations “in the form of headlines”, thus leaving free publication in less conspicuous parts of the publication, and even then, permits reporting provided that the fact that these are only allegations is made clear. It is unclear how such reporting would also not – if we were to accept the Court’s reasoning – harm SK’s and the Supreme Court’s reputation.

Two crucial questions thus appear: Is it correct for the Court to permit a public official to piggy-back on the institution’s reputation? Is the emphasis on harm to reputation, absent a factual finding of prejudice to a fair trial, consistent with Mirajkar and Reliance? The answer to these questions determines how broad truly the freedom of our press under Article 19(1)(a) is – whether the press’ reporting of facts bona fide against those in high places is constitutionally permissible; whether the “free and healthy press (that) is indispensible to the functioning of a true democracy” is truly indispensible; whether this freedom exists only on paper, to stop the newspapers that matter.

Death Penalty: Bhullar Overruled

Today, in Shatrughan Chauhan v. Union of India, the Supreme Court delivered a landmark judgment on the death penalty and, inter alia, overruled its own 2013 judgment in Bhullar v. NCT. Recall that in Bhullar, relying upon the concurring judgment of Shetty J. in Triveniben, the Supreme Court had held that for cases under terrorism statutes like TADA and POTA, because of the serious nature of the crimes involved, an excessive delay in processing a death row convict’s mercy petition could not be a ground for commuting the death sentence to life imprisonment (see Paragraph 40 of Bhullar). The Court in Bhullar observed:

“Such cases stand on an altogether different plane and cannot be compared with murders committed due to personal animosity or over property and personal disputes. The seriousness of the crimes committed by the terrorists can be gauged from the fact that many hundred innocent civilians and men in uniform have lost their lives. At times, their objective is to annihilate their rivals including the political opponents. They use bullets, bombs and other weapons of mass killing for achieving their perverted political and other goals or wage war against the State. While doing so, they do not show any respect for human lives. Before killing the victims, they do not think even for a second about the parents, wives, children and other near and dear ones of the victims. The families of those killed suffer the agony for their entire life, apart from financial and other losses. It is paradoxical that the people who do not show any mercy or compassion for others plead for mercy and project delay in disposal of the petition filed under Article 72 or 161 of the Constitution as a ground for commutation of the sentence of death. Many others join the bandwagon to espouse the cause of terrorists involved in gruesome killing and mass murder of innocent civilians and raise the bogey of human rights.” 

The Supreme Court rejected this reasoning. It held that in relying upon Shetty J.’s concurrence in Triveniben, the Bhullar court overlooked the majority judgment’s stance that a delay in carrying out the death sentence was, indeed, one ground for commutation; and thus, the Court held Bhullar to be per incuriam (i.e. decided without reference to an earlier relevant judgment, and thus having no force as precedent). The Court held, on the other hand, that:

“There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence.” (Para 63)

The Court, however, refused to provide a specific time after which a delay would render commutation necessary, and held that each case would be adjudicated on its own merits. In essence, the Court thus made delay an essential mitigating factor to be considered on a standard Bachan Singh balance-sheet enquiry, required under the due process requirements of Article 21.

At the heart of the argument is the idea that keeping a death row convict under the shadow of death for years is a form of cruel, inhuman and degrading punishment that no civilized society (whether or not it allows capital punishment) should inflict upon human beings (this short story by Jean-Paule Sartre and this poem by Oscar Wilde perhaps drive home the point most forcefully). The inevitable mental agony that accompanies waiting for an inevitable death  demeans individual dignity. Insofar as the Court has interpreted Article 21’s guarantee of the right to life to include treating all individuals with dignity, today’s judgment reaffirms the humanism that is the foundation the Constitution, and affirms that whatever the crime might have been, human beings continue to have a legitimate claim to be treated with dignity under the Constitution.

The Court further held, referring to a copious body of foreign law and international law, that insanity was a ground for commutation (paras 71 – 78); this is justified by our basic, intuitive notion that persons in a democracy ought to suffer penalties and burdens only to the extent that they are responsible for the actions that they undertake – and that punishment must respond not just to the nature of the crime, but to the ability of the actor to understand or comprehend the nature of his actions. This is why, for instance, the American Supreme Court in Ford v. Wainwright held that executing the insane was a form of “cruel and unusual punishment” under the Eighth Amendment, and served no penological goals.

Coming to the fifteen individual cases before it, the Court found that in each of these cases, there had been an unexplained an unwarranted delay of many years, leaving the convicts on death row. Consequently, it commuted the sentences of life imprisonment. It ended by framing guidelines for the purpose, requiring that:

– there be no solitary confinement while the mercy petition is pending before the President

– free legal aid be provided to death row convicts

– the provision of all relevant materials to the President speedily and efficaciously

– the communication of the rejection of the mercy petition to the convict by the Governor, and/or then by the President, and to his family, in writing and as a matter of right (this is especially important, considering that the last execution India carried out, the family was not informed)

– a minimum of fourteen days’ notice to the convict, to allow him to meet his family (see above)

– regular physical and mental health check-ups

– provision of all relevant documents to the convict, so as to allow him the most efficacious access possible to judicial remedies

– a final meeting with friends and family

– a post-mortem report: this is especially important, as the Court linked this to the constitutionality of hanging itself: it had been argued that hanging caused undue amounts of pain – especially when death was caused not due to the breaking of the neck, but by long strangulation. The Court specifically held that the point of the post mortem was to ascertain how death had been caused. Feasibly, then, in the near future, if it is found that a significant number of hangings cause pain and other forms of physical degradation, it will be possible to challenge the constitutionality of this method itself.

Today’s judgment, it is submitted, is rightly decided. Perhaps it is best to leave the last word to the Court, in its penultimate paragraph, suggesting not just that the death penalty should be administered humanely, but that the very idea – say it softly – of State-sanctioned killing of human beings has no place in a civilized democracy:

“Remember, retribution has no Constitutional value in our largest democratic country.” (Paragraph 263)

 

 

 

Reservations, Equality and the Constitution – I: Origins

What vision of equality does our Constitution commit us to? The answer has been contested repeatedly throughout the fraught legal history of Articles 15 and 16. It has involved numerous amendments, at least one complete judicial volte face, and multiple basic structure challenges, past as well as ongoing. To understand what is at stake, therefore, we must trace the judicial interpretation of these provisions through some of the most important cases; and the most fruitful area of enquiry, I suggest, is the Supreme Court’s jurisprudence on reservations – or, as is known by its more generic term – affirmative action.

Undeniably, discrimination on the bases of, inter alia, caste, sex, religion and place or origin was rife in pre-colonial and colonial India. And undeniably, Articles 15 and 16 are designed to remedy this. This is why, Article 15(1) states:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

And, Article 16(1) states:

“There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”

These two articles are remedial in nature, that is, they seek to remedy, through law, historical wrongs – in this case, the wrong of discrimination. How, exactly, do they propose to do this? To fix ideas, let us start by proposing two tentative definitions. A colour-blind vision of equality is one that treats all classifications based on certain prohibited bases as inherently suspect, and in need of a compelling justification. This theory argues that the historical wrong in question was sorting people by the colour of their skin, their sex, or their caste, and treating them in an inferior manner on that ground. If we are all free and equal individuals, any governmental action that seeks to distribute benefits and burdens by classifying us in this manner, must be presumptively invalid. Race, sex, caste etc. are simply irrelevant to our worth as persons – hence, the term “colour-blind“. The most famous exposition of this principle is found in US Supreme Court’s Justice Harlan’s dissenting opinion in the infamous Plessy v. Ferguson case, that upheld racial segregation in public facilities. Justice Harlan wrote:

“In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our Constitution in color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.   The humblest is the peer of the most powerful.  The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved…. the arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.  It cannot be justified upon any legal grounds…”

More recently, Justice Thomas, in Fisher v. Texas, provided the modern gloss of the doctrine:

“… government must treat citizens as individuals and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny.”

At the heart of the color-blind theory is not simply a distaste of classifications, but the idea that citizens must be treated as individuals, and not as members of groups. Thus, one of the concerns that is standardly expressed by supporters of the colour-blind theory is that reservations and affirmative action – that classifies on the basis of groups – will serve only to perpetuate a society in which people are characterized and defined by their affiliation to and membership of stipulated social groups. This, for those who value the primacy of the individual, is an anathema. Thus, Justice Powell, in the famous Bakke case, was to observe:

“Disparate constitutional tolerance of such [racial] classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them…”

Against the colour-blind theory of equality stands the group-subordination theory. The group-subordination theory holds that insofar as our society has been historically rife with discriminatory forms of injustice, such injustice has been meted out to groups qua groups – to women, to “lower-castes”, (at different stages and at different places) to Hindus or to Muslims. Insofar as individuals have suffered, they have suffered by virtue of their membership of these groups – as women, as Dalits, and so on. Thus, genuine, substantive equality can be achieved only by ensuring that historically subordinated groups are no longer subordinated. So, for example, Justice Brennan wrote, when dissenting in Bakke: 

“Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area… a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large.”

The last sentence is crucial, because it represents the anti-subordination view that discrimination is not confined simply to laws, but permeates society at every level. Thus, it is note enough for a Constitution to simply declare equality – if, because of a history of past discrimination and continuing non-legal present discrimination, minority groups are placed at a significant disadvantage qua minority groups, the government is permitted to take positive action to remedy that situation. One such action – the most famous and the most controversial – is affirmative action.

Which of these two visions – if any – is embodied in the Constitution? Of course, a complete answer will require an analysis of sixty years of judicial practice, but here is my first claim: at the time of the framing, there are good arguments for believing that the Constitution was committed to a colour-blind vision of equality. This can be seen from a textual, structural and historical reading of Articles 15 and 16. First, the text specifically uses the term any citizens and all citizens in Articles 15 and 16, which is a clearly individual-centric term. Article 15 could have read “The State shall not discriminate on the basis of sex, caste, religion…” Instead, it reads “the State shall not discriminate against any citizen on the grounds of…” The addition of “any citizen” is superfluous unless it is meant to signify a commitment to the colour-blind, individual-centric vision of equality.

Secondly, consider Article 16(4):

“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

We shall come to the wildly diverging judicial interpretations of this Article in a subsequent post, but on pure text – this provision is framed as an exception to Article 16(1), thus implying that affirmative action needs a specific constitutional sanction, thus further implying that under the equality provision of Article 16(1), affirmative action is impermissible. This is further buttressed by Article 16(2), which states:

“No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.”

A combination of these three provisions lend powerful support to the colour-blind view: the colour-blind view argues that affirmative action/reservations are presumptively impermissible precisely because they classify on the basis of race, caste, sex, religion etc. Articles 16(1) and 16(2) seem to void any such classifications, and 16(4) carves out a specific exception to the rule. And even further support from this point comes from the absence of a parallel provision in Article 15: at the time of the framing, Article 15(4) didn’t exist (it came into effect as a result of the judgment in Champakam Dorairajan, which we shall discuss in the next post). The only reason why this would make textual – and structural – sense would be if the framers saw a specific value in providing reservations in employment, but not in education. Whatever the merits of that view, it affirms that the idea of equality under the Constitution (again, at the time of the framing) did not contemplate reservations unless specifically provided – directly in line with the colour-blind theory.

And lastly, the Constituent Assembly debates: throughout the Debates, we find references to how the legitimacy of the Assembly was derived not from groups, but from the people as a whole. At numerous points, arguments that such-and-such group is not represented are answered by the contention that ultimately, it is the people who are represented. More importantly,  we must remember, of course, that when reservations were proposed, Ambedkar defended them by specifically arguing that they were temporary (the original plan was to phase them out in ten years time). Once again, this is colour-blindness – the ultimate ambition is to dissolve group identities, and distribute benefits and burdens only on the basis of the individual qua individual. Ambedkar’s defense of a limited exception to the overall equality principle was that it was necessary precisely to achieve that ultimate, individualist goal.

Thus, there are strong arguments to suggest that the framers believed that the Constitution was meant to be colour-blind. This is not a mere academic quibble: if it is true that the vision of equality is, indeed, a colour-blind one, then that means, for example, that the interpretations of Article 15(1) and 16(1), must follow that vision; in other words, insofar as the exceptions under, for instance, 15(4) or 16(4) are not attracted, classifications (for example, on other proscribed bases) are to be viewed strictly, and group-centred arguments based on historical subordination are not to be accepted easily. And this also has ramifications across the board, because the question of whether our fundamental rights are, ultimately, built on the idea of the individual, or a more communitarian idea that involves groups, has consequences for the way we interpret other rights, such as free speech, for instance (can the government control the speech of some powerful groups to aid others to speak?), or the freedom of religion (is membership of a religion determined by an individual or by religious authorities?) and so on.

Therefore, the theoretical foundations of Articles 15 and 16 are critical not just to a correct interpretation of equality, but to our Constitution as a whole. In this post, I have made a start by positing the initial theory that undergirded them – one of colour-blindness. We shall now move on to examine the cases.

The Constitutionality of the Marital Rape Exception

In the aftermath of the Delhi gang-rape in late 2012, India’s rape laws were subjected to much public scrutiny, and eventually overhauled. While the changes involved, for example, tinkering with penalties for rape, they left one particularly odious part of the law untouched: the marital rape exception.

The Exception to S. 375 of the Indian Penal Code states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This Section creates two classes of persons: married women and unmarried women. It denies the protection of rape laws to the former. Consequently, prima facie, Article 14 of the Constitution is attracted. In order to survive a 14 enquiry, it must be demonstrated that this classification bears a rational nexus to a legitimate State objective.

It might be objected, at the outset, that the Exception doesn’t undertake a classification of persons at all, but only criminalizes certain kinds of sexual intercourse (that taking place outside the confines of marriage). That reasoning is specious. This is because the criminal act is defined by whom it is undertaken with. Non-consensual sex with an unmarried woman is a criminal offense; non-consensual sex with a married woman is not (if you’re the husband). Consequently, the classification is clearly on the ground of marital status.

What State objective could justify this classification? The actual objective with which the law was framed, in 1860, is not in doubt. In the England and United States of the time, that status of women was politically, economically, socially and sexually subordinate to men. Politically, they did not have the vote, on the grounds that, in accordance with republican theory, their interests were “virtually” represented by men. Economically and socially, there were restrictions on their freedom to contract, own and dispose off property, and engage as full participants in the economy, on the ground that men and women were born to inhabit “separate spheres” – the former for the public and economic realm, the latter for domesticity, child-birth and child-rearing. Sexually, they were not permitted to refuse sexual intercourse within the bounds of marriage. These numerous disabilities came together in a set of rules known as “coverture rules” – the broad doctrine that on marriage, the rights of the woman were subsumed by the rights of her husband. We can therefore understand that the marital rape exception is nested in a whole host of discriminatory practices that ultimately traced their justification to a denial of a woman’s autonomy and personhood, and grounded her political, economic, social and sexual status in the person of her husband.

There can be hardly any doubt that this set of doctrines was decisively repudiated at the time of the framing of India’s Constitution, as amply evidenced through a reading of the Constituent Assembly Debates. In every way, the Indian Bill of Rights is designed to set at nought the most pernicious hierarchies that pervaded society at the time – hierarchies based on caste, sex, religion and so on. This is reflected in the constitutional provisions that illegalise untouchability and forced labour, and most of all in the non-discrimination provisions under Article 15. To the extent that the Exception to S. 375 was based on the Nineteenth-century common-law rules of coverture, then, it is clear that that is no longer a legitimate state purpose, and the Article 14 challenge must succeed.

In order to justify the marital rape exception, then, the State must invoke a different purpose. It is difficult to see what such purpose could be. One possibility is to argue that the impossibility of marital rape is an integral part of all religions, and that therefore, insofar as the State’s purpose is to give effect to religious sentiments, it is a legitimate purpose. This reasoning was, of course, rejected by the Delhi High Court in Naz Foundation (not overruled on this point by the contrary SC decision), on the ground that the legitimate purpose must not be in conflict with the Constitution itself. Insofar, then, that certain religious practices are themselves directly discriminatory, giving effect to them through law is not a valid State purpose. This comports well with the basic idea of political liberalism (as reflected by the principles of our basic structure): a liberal State is premised on the principle of tolerance for a diversity of religious, moral and ethical doctrines insofar as those doctrines themselves do not deny the foundational idea of political liberalism – that society is built upon the voluntary cooperation of free and equal individuals.

It would seem, therefore, that insofar as the marital rape exception creates a classification between married and unmarried women, and denies to the former the equal protection of its criminal legislation, it prima facie violates Article 14; and I cannot, at the moment, think of a legitimate State purpose that would bear a rational nexus to the differentia, and save it from unconstitutionality.

Exclusionary Covenants and the Constitution – IV: Article 15(2), IMA v. UoI, and the Constitutional Case against Racially/Religiously Restrictive Covenants

To sum up what we have discussed so far: the correctness of Zoroastrian Cooperative rests upon Article 19(1)(c) [freedom of association] read with Article 29 [rights of groups to preserve their culture], and is therefore grounded in its own set of specific facts. It does not serve as precedent for the legality and enforceability of restrictive covenants qua contracts, more generally. On the question of enforceability, I have argued that the Shelley v. Kraemer rule that prohibits the judiciary, as an organ of the State, from enforcing restrictive covenants and thus breaching fundamental rights, makes eminent constitutional sense, and ought to be followed. Beyond that, it is an open question whether public policy, flowing from our Constitutional commitment to non-discrimination more generally (in light of the judgments in Brojo Nath Ganguly and Delhi Transport Corporation) would void restrictive covenants by virtue of S. 23 of the Contract Act.

In this post, I will argue that Article 15(2) of the Constitution, as interpreted in IMA v. Union of India, provides a constitutional reason for holding racially/religiously restrictive covenants void.

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...”

In IMA v. Union of India, the question was whether 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). The Court held that it was. Of particular interest, in the long, rambling 160-page judgment, is the following: the Court invoked the applicability of Article 15(2) by holding an educational institution to come within the definition of “shops”, under Article 15(2). Quoting Ambedkar, in the Constituent Assembly Debates, the Court observed:

“To define the word `shop’ in the most generic term one can think of is to state that `shop’ is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service. …. Certainly it will include anybody who offers his services. I am using it in a generic sense. I should like to point out therefore that the word `shop’ used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to.” (Para 113)

In other words, the Court rejects the standard uses of the word “shop” – that is, a store, “a building or room where goods are stored“, “a building stocked with merchandise for sale“, “a small retail establishment or a department in a large one offering a specified line of goods or services” – in favour of an extremely abstract, rarefied, “generic” usage, to shoehorn educational institutions into the definition. A shop is any place where an abstract seller x offers an abstract thing y to an abstract buyer z. Or, in other words, a “shop” is merely a synecdoche for the idea of the impersonal, abstract market of the modern liberal-capitalist economy. This is the only way that the Court succeeds in getting educational institutions into the ambit of 15(2). But note that, once the Court does so, obviously, the reach of “shop” isn’t limited to educational institutions. If “shop” merely embodies the abstract market, then the reach of 15(2) extends to private economic market transactions generally, and not just the business of education. And covenants for sale or lease of property are examples par excellence of such transactions. The logic of IMA v. UoI, therefore, inescapably brings such covenants under Article 15(2), that applies horizontally. If, therefore, these covenants discriminate against persons on prohibited grounds – race, religion, sex etc. – they are unconstitutional.

Note that this conclusion ins’t as radical as it sounds – it doesn’t cover cases like Zoroastrian Co-Op, for instance, but is limited to economic transactions (which, in any event, in accordance with classical economic theory from the time of Adam Smith, are supposed to take place at arm’s length).

Is there any warrant for the Court’s reading of Article 15(2), a reading that sounds absurd on the face of it? I will try to argue that there is. To start with, let us consider the most basic objection: the text of Article 15(2). If the framers wanted to apply Article 15(2) to all market transactions, why didn’t they simply say so? Why did they use concrete terms – and not just one concrete term, but shops, restaurants, hotels – to express the rarefied, abstract concept of the market?

My answer shall consist of two parts. The first part will be purely defensive, showing that the text doesn’t present an insurmountable barrier to this interpretation. To do so, I will take – and tweak – an example developed by Professor Jed Rubenfeld in Revolution by Judiciary.

Professor Rubenfeld argues that based on their history, generally worded constitutional commitments must be interpreted to apply to certain concrete situations (e.g., “equality” to non-segregetated schools). In his hypothetical, Odette is married to Swann, and cheats on him with his friend Duke. Ashamed, she vows that she will never deceive Swann again. Rubenfeld argues that the context in which this commitment was made implies that not-sleeping-with-someone-else is the paradigmatic case of deception – i.e., no interpretation of “deception” can fail to take into account the central act that led Odette to make this vow. This makes sense, because ultimately, what Odette agonized about was specifically sleeping with Duke in itself, but that in doing so, she betrayed Swann’s trust. This explains why she framed her vow in general terms.

I want to take Rubenfeld’s hypothetical and reverse it. Ashamed and mortified by her act, Odette is asked by a friend, “what did you do last night?“, to which she replies: “I slept with Duke. I’m utterly ashamed. I vow I’ll never do that again.” Now, a few months later, Swann is away, and at a house-warming, Odette finds herself attracted to Marcel. She says to herself, “Well, all I did was vow never to sleep with Duke again. But this is Marcel. So my vow remains unbroken.” Nobody will accept this reasoning. This is because if Odette’s vow is to make any sense, it must be understood as expressing some kind of principle. Odette made her promise because she saw something wrong in what she had done, and the wrongness of the act – sleeping with Duke – lay not in it being Duke, or a man with blue eyes, but her breach of Swann’s trust. Thus, although her vow was framed in specific language, as an immediate response to a situation, its reach was not so. Again, the core idea is that we take Odette’s vow to be grounded in reason – and embodying a principle. And to understand what the principle is, we must study the context and circumstances in which her vow, or commitment, was made.

If, therefore, history shows that there are, indeed, good reasons for treating the concrete word “shop” as embodying the more abstract principle of the market, then the text need not stand in the way of interpreting it that way. And indeed, the history does show it. The meaning of “shops” was debated in the Constituent Assembly on the 29th of November, 1948. Shri Nagappa asked specifically whether “shops” included not just places where goods were bought, but also places where services were contracted for. The debate then turned to a host of private, discriminatory practices, the amelioration of which was the objective of Article 15(2) – as a whole, and not clause-by-independent clause. Indeed, Shibban Lal Saksena objected to the provision precisely on the basis of its far-reaching character, one that would compel Hindus to go against their religious (as well as cattiest) practices involving food. Ambedkar then answered Sri Nagappa in the quotation that the Supreme Court in IMA v. UoI extracted – about “shop” being used in its “generic” sense. Specifically – and this the Supreme Court did not extract – Ambedkar was asked whether “shop” included a doctor and a lawyer’s chambers. His answer: “it will include anybody who offers his services.”

And lastly, when, on 22 November 1949, towards the very end of the drafting process, Ajit Prasad Jain discussed the provision, he did so by grounding it in a long history of discrimination against women, scheduled castes, untouchables and other groups that had blighted Indian society. We can thus see, very clearly, that both the supporters and the opponents of what eventually became Article 15(2) were united in its understanding that the purpose of 15(2) – as expressed through its language – was to reverse this history – a history in which a part of society was systematically excluded from the normal functioning of economic life. Suddenly, IMA v. UoI’s interpretation no longer sounds quite so absurd.

To understand what our framers were getting at, let us deepen our analysis further. Traditionally, it is true that civil liberties – fundamental rights – have been deemed to be exercisable vertically – individuals against the State. But there is a specific historical reason for this: and that is that when bills of rights were first conceptualized (in particular, in the aftermath of the American revolution), they were conceptualized in the context of a distinctly Western idea of sovereignty, of Thomas Hobbes and Jean Bodin: the idea that sovereignty was single, indivisible, and ultimate, and resided at one place in the polity. For Hobbes and Bodin, sovereignty was concentrated in the figure of the sovereign; but through the American and French revolutions, it came to be thought of as residing in the people. The basic idea of the inherent unitary and unified nature of sovereignty, though, remained intact. Thus, when the Americans developed their system of representative republican democracy, through which sovereign power was delegated by the people to their elected representatives, it made sense to draft a bill of rights designed to check the State and only the State, because there – and only there – was where the locus of sovereign power (albeit delegated) resided. (This is a summary of the richly detailed intellectual history, found in Gordon Wood, The Creation of the American Republic).

The work of post-colonial scholars informs us, however, that sovereignty in India was always understood very differently: it was inherently decentralized and had its locus at multiple points, especially in the economic sphere (see, e.g., Sudipta Kaviraj, Trajectories of the Indian State); in addition the works of Guha and other subaltern historians (see, e.g., Dominance without Hegemony) shows us that forms of authority in the marketplace (even during the colonial period) unlike in the West, instead of being governed by the impersonal, vertical market forces of liberal capitalism, continued to be horizontal, person-to-person and tradition based, in continuance of the multiple, decentralized centers of power-and-sovereignty that had characterized the old Indian polity. Indeed, one of the objectives of the nationalist movement was precisely to replace this set of relations with a liberal-capitalist order (see Partha Chatterjee, Nationalist Thought and the Colonial World). Thus, to start with, we can see that there is a much stronger case for supporting the idea of horizontal rights – given the very different workings and understandings of sovereignty in India – than there is in Western constitutions.

Previously, on this blog, we have discussed the idea of the “transformative constitution” – one that seeks to transform, or change, an existing status quo. The Constituent Assembly Debates make it clear that our Constitution was transformative in two ways: it sought to transform not only (in part) the British colonial system, but also the underlying pre-colonial relations based on caste, untouchability and gender oppression. Our sketchy and reductive foray into that history shows us that one of its characteristic features was, precisely, the horizontal exercise of power relations in an exclusionary manner, including in the sphere of economic transactions. The fact that the framers wanted to get rid of this is evident at other places where constitutional rights are horizontal: the abolition of untouchability (which was widely used as a tool of economic oppression) and of bonded labour (another economic weapon). In the face of all this, it makes perfect sense that the framers, through Article 15(2), which is also clearly transformative, were attempting to do away with traditional discriminatory practices that pervaded the private economic realm. Their use of the word “shops” – and Ambedkar’s clarification of its meaning – was one way of doing so, and fulfilling the transformative promise of India’s constitution.

This, then, is the argument: the text of 15(2) is not an insurmountable bar against a broad reading of “shops”. The Constituent Assembly debates support a broad reading. The structure of Part III – horizontal rights pertaining to untouchability and forced labour – support it. And finally, the transformative nature of India’s constitution – with respect to a long history of horizontal discrimination, fighting against which was one of the goals of the national movement – justifies the use of horizontal constitutional rights against discriminatory economic transactions in the private sphere. IMA v. UoI’s interpretation, therefore, is faithful to the structure and philosophy of India’s bill of rights, and ought to be upheld.

The upshot is that racially/religiously restrictive covenants violate Article 15(2). Acts like denying a person a house on the ground of their Muslim religion (for instance, in Bangalore) are violations of the Constitutions, and ought to be treated by the Courts as such.

Exclusionary Covenants and the Constitution – III: Zoroastrian Cooperative and Political Liberalism

In the previous post, we discussed – and criticized – the 2005 Supreme Court judgment in Zoroastrian Cooperative on two grounds: first, the Supreme Court was incorrect in conflating statutory policy and public policy; and secondly, it was incorrect in failing to distinguish between holding an exclusionary covenant unconstitutional, and in refusing judicial enforcement of it.

While the judgment of the Court is, I submit, flawed as a general exposition of the law on exclusionary/restrictive covenants, that does not settle the question of whether the outcome of the case was correct. This is because, in addition to its arguments on the freedom of private transactions and restricting public policy to the four corners of the statute, the Court also invoked Article 19(1)(c) of the Constitution – the fundamental freedom to associate. Part of the Court’s public policy arguments, indeed, appear to turn upon the unconstitutionality of requiring persons to “associate” with others that they do not want to associate with, which – according to the Court – would have been the outcome had the exclusionary covenant been left unenforced.

There is, however, a problem with this argument. The statutory right to contract is not the same as the constitutional freedom of association. The Indian Contract Act, for instance, places numerous restrictions upon the freedom to contract that go beyond the Article 19(4)’s permissible limits upon the freedom to associate. More importantly, a quick glance at the Constituent Assembly Debates (here, here, and here) reveals, unsurprisingly, that the freedom of association was considered to be an essential aspect of personal civil liberty, akin to the freedom of speech and the freedom of movement, contractual rights being nowhere mentioned. Historically, the freedom of association has been about protecting the rights of labour unions, religious minorities and other unpopular groups to organize and defend their rights or their ways of life, as the case may be. The important Indian cases have also understood the freedom of association to be about such purposes (see here, here and here). And indeed, Daman Singh would appear to uphold this view, when it expressly rejected the application of 19(1)(c) to Cooperative Societies (the Supreme Court in Zoroastrian Cooperative did attempt to distinguish that case).

Therefore, it is clearly problematic when in Paragraph 29, Zoroastrian Cooperative observed:

“An aspirant to membership in a co-operative society, is at arms length with the other members of the society with whom he enters into the compact or in which he joins, having expressed his willingness to subscribe to the aims and objects of that society. In the context of Section 23 of the Contract Act, something more than possible or plausible argument based on the constitutional scheme is necessary to nullify an agreement voluntarily entered into by a person.” (Paragraph 29)

It is problematic because insofar as the Court speaks about arm’s-length transactions and holds membership in a Cooperative Society akin to a contract, Article 19(c) is not in play. There is, moreover, a bigger problem: to the extent that the Court does hold such membership akin to an arm’s-length contract, then the primary justification for its statutory-policy-equates-public-policy argument is clearly flawed. As we have argued in the previous post, public policy exceptions to contracts constitute a clear common law category, and are not restricted to the four corners of the statute. In Gherulal Parekh, for instance, the Court surveyed a vast body of common law precedent to hold that “public policy” was equivalent to “the public good”, and that there were clear common law categories (e.g., “sexual immorality”) of acts against public policy (for the common law exposition of the public policy exception, see Holman v. Johnson (the clean hands doctrine as an aspect of public policy), and Lord Sumption’s lecture here) . Subsequently, the scope of the public policy exception was vastly (and, in my submission, incorrectly) expanded in Brojo Nath Ganguly, but both these cases were united in implicitly – but clearly – rejecting the four-corners-of-the-statute argument in Zoroastrian Cooperative.** 

We are therefore faced with the following situation: to the extent that Zoroastrian Cooperative is based on principles of contract law, the two major bases for the decision – public policy and freedom of association – are unambiguously incorrect. The case, therefore, can be saved only by arguing that it is not, after all, about contract law – and therefore, crucially, is not precedent for the unconstitutionality of unenforceability of exclusionary/restrictive covenants generally – but about something else that justifies invoking the freedom of association. What might that be?

I suggest that the answer lies in a constitutional provision that was invoked in argument, but not directly relied upon by the Court: Article 29, that guarantees the the rights of “citizens… having a distinct language, script or culture of [their] own…to conserve [it].” This provision, I would argue, helps us to understand why the decision in Zoroastrian Cooperative might have been correct. To fully grasp the philosophical issues at stake, however, we must turn to the important work of John Rawls.

In his book, Political Liberalism, and in the essay Justice as Fairness, Rawls lays out the groundwork of political liberalism. He takes as given the fact that in a liberal democracy, with political institutions that allow reasonably free thought and discussion, over time, citizens will come to affirm very different world views, religions, moral codes and ways of life (these he calls “comprehensive doctrines”: examples would be christianity, hinduism, utilitarianism, and so on). This basic fact of pluralism is something that characterizes – and is a permanent feature of – a modern liberal democracy. Insofar as these differing philosophies, religions and world views are reasonable (that is, consistent with the basic liberal idea of society as a system of fair cooperation between free and equal persons), Rawls takes their existence (being the upshot of the free exercise of reason by autonomous individuals) to be of value.  The basic question, then, is this: how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical and moral doctrines? (PL, p. 4)

Rawls’ answer is to find an overlapping consensus – that is, a set of principles of justice, upon which public/State coercion is based and justified – that can be endorsed by – or at least, are consistent with – the plurality of reasonable comprehensive doctrines affirmed by the citizens of the polity. And that can happen only if these principles of justice are “independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm.” (PL, p. 9) This is what Rawls means by a “political conception of justice”: that is, a conception that applies to “society’s main political, social and economic institutions, and how they fit together into one unified system of social cooperation…” (PL 11, 39),  without affirming or denying the truth or validity of religious/moral ideas and philosophies, and what they have to say about life, personhood, character, familial and associational relationships, and so on. What is crucial to the political conception of justice is that: “its content is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of democratic society. This public culture comprises the political institutions of a constitutional regime and the public traditions of their interpretation, as well as historic texts and documents that are common knowledge. Comprehensive doctrines of all kinds – religious, philosophical and moral – belong to what we may call the “background culture” of civil society. This is the culture of the social, not of the political- it is the culture of daily life, of its many associations: churches etc. In a democratic society there is a tradition of democratic thought, the content of which is at least familiar and intelligible to the educated common sense of citizens generally. Society’s main institutions, and their accepted forms of interpretation, are seen as a fund of implicitly shared ideas and principles.” (PL, p. 14 – 16)

In other words, not only must the principles of justice that govern the social, economic and political structures of society be restricted to the domain of the political, but the arguments used to defend and justify them must belong to the domain of public reason – that is, modes of argument, proof and evidence affirmed by the plurality of citizens holding their diverse comprehensive doctrines. One major reason for this is the basic principle of liberal legitimacy, that holds that “coercive power is legitimately exercisable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” (PL, p. 217) And this, in turn, implies that, because “given the fact of reasonable pluralism, a public and shared basis of justification that applies to comprehensive doctrines is lacking in the public culture of a democratic society… reasonable persons will think it unreasonable to use political power to repress comprehensive views that are not unreasonable, though different.”  (PL, p. 61)

In other words, as Dworkin puts it in this essay (and this chapter), the basis of political liberalism is a refusal to impose the majority’s idea of the good upon all of society, and allow everyone the freedom to pursue their own conceptions of the good (as opposed to perfectionism, which allows the State to choose one vision of the good and enforce it through law).

Let us now apply these abstract ideas. While political liberalism is based upon the idea of remaining neutral between competing visions of the good, and restricting the principles of justice and coercion to the political, it is also a simple fact that a majority of a polity’s laws go beyond the narrowly political sphere, and enact the moral sentiments of the majority. Often, then, obedience to such laws would be in conflict with other communities’ pursuit of the good, as they see it. Insofar as such pursuit does not clash with the basic liberal idea of society as a system of cooperation between free and equal citizens, political liberalism such communities should be permitted to follow their own vision of the good. To put the matter concretely: political liberalism would not grant minority groups exceptions from following basic criminal laws against, for instance, murder and violence, but it would – to take a Rawlsian example – grant them exceptions from compulsory public education (insofar as their own system of education did not violate the basic liberal principle mentioned above). The famous case in this context is Wisconin v. Yoder, where the US Supreme Court permitted the Amish community to homeschool its children, consistent with its own vision of what the ideal education should be, after confirming that the Amish system was not itself in violation of the principles of liberal citizenship.

The claim of the exclusionary covenant in Zoroastrian Cooperative to not just validity (contra legitimate public policy concerns), but actual judicial enforcement (contra the unimpeachable leal reasoning of Shelley v. Kramer) must surely rest upon this basic idea: insofar as a community believes that the survival of its own set of cultural values qua community depends on its members – and only its members – living together and in proximity with each other (and not upon a politically illiberal conception of race/cultural superiority, the eradication of which is the whole point of Article 15), the principles of Article 19(1)(c) and Article 29 are attracted, and the contrary non-discrimination principle of Article 15 is not. In such cases, the exclusionary covenant is both valid, and may be judicially enforced. Of course, the Court must look into whether the claim in question is actually justified on fact.

What I hope this demonstrates is that if Zoroastrian Cooperative is correct, then its very correctness, grounded in ideas of political liberalism, restricts its scope of operation to narrow sets of facts akin to the very facts of that case. It is not a general precedent for the validity and enforceability of exclusionary covenants (it would not, for instance, legitimate exclusionary covenants against Dalits, or Muslims, or women). As to enforceability, as I have argued before, Shelley v. Kramer applies squarely to India, and ought to be followed – the judiciary, as one wing of the State, must not enforce covenants that, had they been an instance of State action, would have failed an Article 15 test. As to validity, in the next – and last – post in this series, I shall analyze the impact of IMA v. UoI upon that very question.

—

** My thanks to V. Niranjan for clarifying this point.

Exclusionary Covenants and the Constitution – II: The Zoroastrian Co-op Case

In the previous post, we discussed how the American, Canadian and South African courts have sought to reconcile respect for private transactions with preventing the social evil of racially/religiously/ethnically restrictive covenants. We now turn to the locus classicus in India, Zoroastrian Cooperative v. Destrict Registrar, a 2005, 2-Judge decision of the Supreme Court. Before we dive in, a word of caution: much like the South African case of Curators v. Univ. of Kwa-Zulu Natal, the precise ratio of Zoroastrian Cooperative is difficult to discern, because although the case arises out of a very narrow set of facts, the Court blithely moves between the particular and the general, without quite clarifying what the grounds for its decision are. This makes an accurate analysis somewhat difficult.

The Zoroastrian Cooperative Housing Society was a registered society with its own bye-laws, under its parent legislation, the Bombay Cooperative Societies Act. According to bye-law 7 r/w 21, only Parsis were eligible to become members of the Society. The effect of this was that since housing shares could be transferred only to members, effectively, only Parsis could buy plots under the aegis of the Cooperative Society. Despite these by-laws, Respondent No. 2 (a member) entered into negotiations with Respondent No. 3, a (non-Parsi) builders’ association, to sell them its property. After a series of decisions in the Tribunals, a High Court single bench and a High Court division bench, all essentially holding that the bye-laws were invalid as a restriction on alienation of property (an argument used, as we have seen, by the Canadian courts), the matter came before the Supreme Court.

At the outset, then, we may note that the set of facts in this case resemble Shelley v. Kramer: the Court did not have to rule on the constitutional validity of the bye-laws, since in effect the Cooperative Society was asking it to enforce the restrictive covenant against the respondent, who wished to freely alienate his property. The distinction between judicial enforcement of a restrictive covenant, and the validity of a restrictive covenant, however, seems to have been lost upon the Court, since it treated the case (almost) exclusively as a question of validity. This, as we shall see, was unfortunate.

The Cooperative Society argued that under Article 19(1)(c), Parsis had the fundamental right to association, which right could not be infringed by imposing upon them members they did not wish to accept. It also relied upon Article 29’s right of minorities to preserve their own culture. Lastly, it argued that the bye-laws themselves violated no provision of the parent legislation, and were therefore legally sound. On the other hand, the Respondents raised a familiar argument – that this kind of restrictive covenant was invalid because it violated public policy, as drawn from various constitutional provisions (in particular, the Article 15 and other non-discrimination clauses). [there were some arguments on the nature of the restriction on alienation, which we need not go into here].

The Court first went into an exhaustive analysis of the Gujarat Cooperative Societies Act (the successor legislation to the Bombay Act after the linguistic reorganization of states). It then went into the history of cooperative legislation in India, finding that “normally, the membership in a society created with the object of creation of funds to be lent to its members, was to be confined to members of the same tribe, class, caste or occupation… running right through these enactments [is the] the concept of restricted membership in a co-operative society.” (Paragraph 9) The reason for this, the Court found, was that as far as a housing society is concerned, “there should be a bond of common habits and common usage among the members which should strengthen their neighbourly feelings, their loyal adherence to the will of the society expressed by the committee’s orders and their unselfish and harmonious working together. In India, this bond was most frequently found in a community or caste or groups like cultivators of a village.” (Paragraph 10)

This reasoning is problematic for many reasons, not least because one of the whole purposes of the Constitution was to ensure (through provisions such as Article 15) that the invidious modes of identification such as caste, responsible for some of the worst forms of discrimination in Indian history, were to be made legally irrelevant as far as possible. In selectively referring to caste as a mode of creating harmonious internal bonds, the Court, it is submitted, erred.

Referring to precedent, the Court then held that since Cooperative Societies were essentially creatures of statutes, the right to join a cooperative society would itself be one that was regulated by statute. Thus, “no individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.” (Paragraph 12)

In an extremely obtuse paragraph, the last line is particularly inexplicable. What, precisely, is the stream and what is the source? Surely, the source – the ultimate source of all legal validity – is the Constitution. Under what principle of law or logic is someone barred from challenging the constitutionality of a statute because the statute declares his rights? The Court then seemed to justify this by responding to the public policy argument:

“Prima facie, it may have to be said that public policy, in the context of Section 4 of the Act, is the policy that is adopted by the concerned Act and the Rules framed thereunder. The concept of public policy in the context of the Cooperative Societies Act has to be looked for under the four corners of that Act and in the absence of any prohibition contained therein against the forming of a society for persons of Parsi origin, it could not be held that the confining of membership as was done by bye-law No.7, was opposed to public policy. When a statute is enacted, creating entities introduced thereunder on fulfillment of the conditions laid down therein, the public policy in relation to that statute has to be searched for within the four corners of that statute and when so searched for, one does not find anything in the Act which prevents the Society from refusing membership to a person who does not qualify in terms of bye-law No.7 of the Society.” (Paragraph 14)

This reasoning, however, in unconvincing. The Indian Contract Act, under S. 23, has a public policy exception. Courts have utilized this to hold void, for example, marriage brokerage contracts and letting a property for sex work – neither of which are found within the “four corners” of the Contract Act. Indeed, in Delhi Transport Corporation v. DTC Mazdoor Congress, the Supreme Court observed:

“… in the absence of specific head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest… declare such practice or rules that are derogatory to the constitution to be opposed to public policy.”

This, indeed, makes perfect sense, since the whole point of a public policy clause is to serve as an exception to the enforcement of statutory rules; to look for public policy, then, within the statute whose provisions are impugned is deeply circular (see, for example, this very brief summary of American law.) Thus, it is submitted that the Court was wrong in holding that “[the constitutional scheme] approach is [un]warranted when a statute enacted in that behalf outlines the contours of the policy sought to be enforced by the creation of bodies thereunder.” The Court was wrong because it equated statutory policy (the policy embodied in the statute) with public policy, and the two are entirely different concepts.

We now come to what – in my opinion – is the most defensible ground of the judgment. Responding to the Part III challenge, the Court held that the Society’s bye-laws were in the nature of the articles of association of a company – not, that is, like a statute, but only “binding between the persons affected by them.” (Paragraph 15) In other words, the Court held – correctly – that a private, contractual agreement is not subject to general Part III scrutiny, but only under the parent legislation (if it was a contract, it would be the ICA; here, it would be the relevant Cooperative Societies Act). The Court then made the contract analogy even clearer, holding that:

“Part III of the Constitution has not interfered with the right of a citizen to enter into a contract for his own benefit and at the same time incurring a certain liability arising out of the contract.” (Paragraph 16)

Of course, the problem now is obvious – it is an established common law rule, found as well in the Indian Contract Act, that contracts violating public policy are void – but, as we have seen, the Court dodged this question by equating statutory policy with public policy.

Nonetheless, the Court did attempt to provide an analysis of this sort, although it did not frame it as a public policy argument. Responding to the specific Article 15 discrimination argument on merits, it observed:

“Running through the Cooperative Societies Act, is the theory of area of operation. That means that membership could be denied to a citizen of this Country who is located outside the area of operation of a society. Does he not have a fundamental right to settle down in any part of the country or carry on a trade or business in any part of the country? Does not that right carry with it, the right to apply for membership in any cooperative society irrespective of the fact that he is a person hailing from an area outside the area of operation of the society? In the name of enforcing public policy, can a Registrar permit such a member to be enrolled? Will it not then go against the very concept of limiting the areas of operation of cooperative societies? It is, in this context that we are inclined to the view that public policy in terms of a particular entity must be as reflected by the statute that creates the entity or governs it and on the Rules for the creation of such an entity.”

This, of course, in its own right, makes perfect sense, since limiting membership by area does not discriminate on any prohibited head, and is also, not coincidentally, perfectly in consonance with the point of housing societies. That logic, however, says nothing about racially – or, in this case, religiously – restrictive covenanting. This also explains why the Court’s numerous examples of other Cooperative societies – of agricultural workers, laborers, and even vegetarians (Paragraph 33) are irrelevant, because there again, there is no discrimination on the basis of a prohibited category.

The Court, however, buttressed this claim with a repetition of the 19(1)(c) freedom of association, and furthermore, stressed the importance of respecting contracts freely and voluntarily entered into by competent adult individuals. (Paragraphs 22 – 23). In other words, it held that there was a separate public policy interest in upholding agreements freely and voluntarily entered into. Again, there is a logical problem here – public policy, e.g., in the ICA operates as an exception to the rule of respecting voluntary, private transactions. That is, the right to contract already has statutory force; we then consider whether there are reasons in public policy to deny a particular contract that force. To use public policy to support the contract is – again – circular reasoning.

On these grounds, then, the Court refused to find the agreement void; but then, it went even further, holding that:

“It is also not open to the authorities under the Act to relieve him of his obligations in the guise of entering a finding that discrimination on the basis of the religion or sex is taboo under the Constitution in the context of Part III thereof.” (Paragraph 29)

In this, the Court – without providing an reasons – goes even beyond the weak Shelley v. Kramer doctrine in not just refusing to invalidate the agreement, but even requiring State enforcement of it – and holds a Part III challenge to the contrary irrelevant! This is surely incorrect, because even if it might be remotely possible to argue that the Court is not State for the purposes of Part III, statutory authorities most definitely are! In requiring the State, then, to directly enforce a covenant that discriminates on the basis of a prohibited Article 15 category, the Court is – I submit – compelling it to perform an unconstitutional action.

In sum, therefore, I suggest that the reasoning in Zoroastrian Cooperative is flawed on two grounds: the Court is incorrect in conflating the validity of the restrictive covenant with its enforcement; and it is incorrect in conflating public policy with statutory policy. That does not mean, however, that the outcome of the case was wrong. I believe that the strongest argument in favour of the covenant is one grounded in Article 29, and one that the Court incidentally alludes to at the very end of its judgment:

“…it is open to that community to try to preserve its culture and way of life and in that process, to work for the advancement of members of that community by enabling them to acquire membership in a society and allotment of lands or buildings in one’s capacity as a member of that society, to preserve its object of advancement of the community.” (Paragraph 33)

In the next post, I shall examine the implications of this argument in the context of political liberalism’s philosophical commitment to tolerating – and even encouraging – pluralism in society. And I shall further consider whether, in light of the 2011 judgment in IMA v. UoI, there is now an Article 15(2) argument against exclusionary covenants that makes the Zoroastrian Cooperative judgment redundant.

Exclusionary/Restrictive Covenants and the Constitution – I

An exclusionary covenant (alternatively, a restrictive covenant) is a covenant that restricts the sale or occupation of real property on the bases of race, caste, religion, ethnicity, sex, nationality or other such grounds that we would, prima facie, consider discriminatory. Exclusionary covenants present a troublesome legal problem, because they fall at the intersection of the private right of contract (which capitalist societies, rightly or wrongly, consider sacrosanct) and the pernicious social evil of discrimination. Often, the waters are muddied further by the fact that the groups at the receiving end of the exclusionary covenant have, until recently, been formally treated as second-class citizens in law and/or fact, and only lately been formally emancipated (e.g., blacks in the United States  after the Reconstruction, dalits/scheduled castes and other such groups in India after the Constitution, and so on). Exclusionary covenants then become a substitute for official state-perpetrated discrimination, and other direct forms of suppression that are no longer permitted by law.

Recognising this, courts in a number of jurisdictions have found legal and constitutional reasons to rein in exclusionary covenants. In this first post, I shall consider three such decisions – from the United States, from Canada and from South Africa. In the next post, I shall discuss the locus classicus in India, that is, Zoroastrian Co-op v. Distt. Registrar Co-operative. And in the final post, I shall offer some criticisms of this holding, and discuss whether, in light of how IMA v. Union of India interpreted Article 15(2) in 2011, the law has changed.

The United States Supreme Court decided Shelley v. Kramer in 1948. Simplifying multiple fact-situations to the essentials: in that case, the covenant in question prohibited certain property from being “occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.”

Notwithstanding this covenant, there was a contract of sale for part of the property, and the parcel of land was sold to the Shelleys, the petitioners, who were black. The respondents argued that this contract was void in light of the restrictive covenant that prohibited such sales. The petitioners argued, on the other hand, that the restrictive covenant violated their Fourteenth Amendment constitutional right to equal protection of laws.

At the outset, the Court clarified that the question before it was about the judicial enforcement of exclusionary covenants, and not the validity of the covenants qua contracts.  The latter issue had been decided in the 1926 case of Corrigan v. Buckley, which had held that purely private agreements, that did not involve State action, raised no constitutional questions. Affirming this, the Shelley Court held that “the Fourteenth Amendment erects no shield against merely private conduct, however discriminatory or wrongful.”

Nonetheless, here something more was at stake – it was the Court, one wing of the State, that was being asked to enforce the terms of the exclusionary covenant. Citing a long line of precedent, the Court found that judicial action was undoubtedly State action, and therefore subject to the bill of rights. Indeed, it had already been held, prior, that a state judge’s action in excluding black persons from jury service violated the constitution; and a state court’s decision to uphold a ban on peaceful picketing had been held to be a violation of the First Amendment freedom of discussion; and so on. In the present case, because “the owners of the properties were willing sellers; and contracts of sale were accordingly consummated… it [was] clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.” Consequently, this was a clear case of state action.

Thus, given that the “freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of theFourteenth Amendment”, the Court found that judicial enforcement of the exclusionary covenant would violate the constitutional requirement of equal protection of laws. Consequently, it found the covenant non-enforceable, and reversed the state Supreme Court decision to the contrary.

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Let us now turn to Canada. In In Re Drummond Wren (1945), a restrictive covenant prohibited land from being sold to “Jews or persons of objectionable nationality.” It was argued that this exclusionary covenant was void as as it was in violation of public policy. In order to determine public policy, the Court went into international instruments like the San Francisco Charter (to which Canada was a signatory), the Atlantic Charter, and local legislation such as The Racial Discrimination Act and the Insurance Act, all of which condemned discrimination – both public and private. Consequently, it held that “nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this province, or in this country, than the sanction of a method of land transfer which would permit the segregation and confinement of particular groups to particular business or residential areas, or, conversely, would exclude particular groups from particular business or residential areas.” The Court thus held the covenant void as being against public policy. It also held it void as being an impermissible restraint on the freedom of alienation, as well as being impermissibly vague and uncertain.

It was this last argument that was picked up by the Canadian Supreme Court six years later in Noble v. Alley (1951). At issue was an exclusionary covenant the restricted the sale of land to “any person of the Jewish, Hebrew, Semitic, Negro or colored race or blood.” The majority held the covenant void. Three judges specifically held it void for uncertainty, holding that:

“It is impossible to set such limits to the lines of race or blood as would enable a court to say in all cases whether a proposed purchaser is or is not within the ban.”

The uncertainty holdings in both Drummond and Noble were based upon he 1943 House of Lords decision, Clayten v. Ramsden, where a “Jewish parentage” restriction was held void for uncertainty – inter alia – on the ground that it was impossible to tell how much Jewish blood qualified one as belonging to the “Jewish race.”

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Lastly, consider the 2010 South African case of The Curators v. University of Kwa-Zulu Natal. In that case, a will created a charitable trust, that was to be administered solely for the benefit of white women seeking a tertiary education. It was argued that the freedom of testation – as a form of the freedom of property – was a fundamental right guaranteed by the South African Constitution (S. 25), and thus the will was entirely valid. At the High Court, this argument was rejected, the Court holding that the “racial discrimination inherent in the application of the will’s provisions is contrary to public policy.” Accordingly, it deleted the racial conditions from the Trust instrument. The Supreme Court of Appeal referred to the equality provisions in the South African constitution. It cited the Preamble of the 2000 Promotion of Equality Act, which called for “the eradication of social and economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy.” That Act, inter alia, prohibited racial discrimination in educational institutions, leading the Court to observe that the principle of equality obtained even in person-to-person relations.

The Court then invoked the German constitutional idea of an “objective order of values”. According to this idea, a Constitution not only lists out a set of rights, liberties and State obligations, but it also expresses an objective order of values (e.g., values of dignity, equality and so on) that may be invoked not only against State action, but also serve as background interpretive principles for adjudicating private law disputes (see here and here for an account). In the famous Luth case, for instance, the German Constitutional Court had held:

“…the Basic Law is not a value-neutral document .. Its section on basic rights establishes an objective order of values, and this order strongly reinforces the effective power of basic rights … Thus it is clear that basic rights also influence [the development of] private law. Every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit.“

The South African Court directly linked public policy with the objective order of values embodied within the Constitution, observing that  “Public policy is now rooted in our Constitution and the fundamental values it enshrines, thus establishing an objective normative value system. In considering questions of public policy for purposes of the present application, therefore, the Court must find guidance in “the founding constitutional values of human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism”.'” In other words, the meaning of “public policy” was to be gleaned from the constitutional structure, and the objective order of values it sought to establish. Consequently, the Court upheld the deletion of the racial provisions from the Trust instrument. This public policy concern overrode the freedom of testation, and did not unjustiably deprive the individual of his property. Interestingly, the Court held that its fact-specific decision ought not to be taken for a general prohibition on testators benefiting underprivileged sections of society.**

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Let us sum up. Exclusionary covenants are private contractual acts. Nonetheless, for reasons explained above, there is a strong governmental interest in preventing them when they are used to discriminate against historically suppressed groups. Because of the respect for private contracts, and a general hesitation to apply fundamental rights horizontally against individuals (despite the South African constitution having an express provision allowing the Courts to do just that), the Courts in various jurisdictions have not directly held them constitutionally invalid, but have searched for other remedies. In the United States, the Court refused to enforce such a covenant; that is to say, it held it neither legal nor illegal, but – in a manner of speaking, extra-legal – wholly beyond the bounds of law, with the consequence that individuals could not use State legislation meant to accord citizens various legal rights and benefits under contract law. This is, admittedly, a weak form of protection; a similarly weak form is the void-for-vagueness doctrine that the House of Lords and the Canadian Supreme Court have used. It works well enough in cases of race, which is inherently fluid, but would presumably fail where the discrimination was on the basis of perceivably more solid – but no less pernicious – categories – like sex, religion etc.

Canada and South Africa, however, have also gone further. They have used a contractual remedy – that of voidness for violating public policy – as their method of choice, drawing this public policy from various constitutional instruments. South Africa, in particular, has invoked the objective order of values – values such as equality and nondiscrimination – to find a public policy argument against enforcing racially exclusionary covenants.

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**(There is admittedly, some degree of confusion over whether the publicly-funded nature of the University was a determining factor in the decision – but it is at least clear that the meaning of public policy was arrived at independently of the university’s public nature)

Guest Post: Judicial Accountability and Fundamental Rights – II

[This is the second – and concluding – guest post by Krishnaprasad K.V., an M.Phil candidate at the University of Oxford, and formerly of NLSIU Bangalore (2012)]

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Part I in this series of posts attempted to survey the precedent. The crux of the argument there was this – contrary to the assertion of a Constitution bench of the Supreme Court in Ashok Rupa Hurra, the proposition that judicial orders may be subject to Part III scrutiny is not foreclosed by precedent. I will make two further points here. First, there are strong reasons in principle for concluding that judicial orders must indeed be scrutinised on the basis of Part III standards. Second, the seemingly worrying consequences of this proposition (some of which were highlighted by responses to the previous post) are capable of resolution through other means. I will consider each of these in turn.

A. Principle

There are at least three reasons in principle that, in my view, dictate the conclusion that judiciary does fall within the purview of “State” as defined by Art. 12 of the Constitution.

First, Art. 12 adopts an institutional (as opposed to a functional) classification. The scope of Art. 12 must therefore be determined on the basis of the nature of the entity concerned, not the function it performs. A literal reading of Art. 12 should suffice to vindicate this claim:

“In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

This conclusion when read in light of the Constitution bench decision of the Supreme Court in P. C. Garg v Excise Commissioners provides powerful support for the view that I advance here. In P. C. Garg, the petitioners challenged the validity of one of the rules made by the Supreme Court in exercise of its powers under Art. 145. The impugned rule provided that the Court may impose such conditions as to costs and security as it deems fit, including in petitions under Art. 32. Holding that these rules were indeed capable of violating Part III norms, Gajendragadkar J. reasoned as follows:

“If any of the provisions of such a law were to contravene any of the fundamental rights guaranteed by Part III, they would be struck down as being unconstitutional. Similarly, there can be no doubt that if in respect of petitions under Art. 32 a law is made by Parliament as contemplated by Art. 145(1), and such a law, in substance, corresponds to the [impugned provision], it would be struck down on the ground that it purports to restrict the fundamental right guaranteed by Art. 32. The position of an order made either under the rules framed by this Court or under the jurisdiction of this Court under Art. 142(1) can be no different.” (emphasis mine)

It may be argued that, in the light of the nature of the impugned provision in P. C. Garg, that decision must be confined to legislative actions by judicial bodies. However, as noted above, this argument sits uneasily with the wording of Art. 12. It is difficult to see how a functional distinction of this nature can be accommodated within the clearly institutional classification adopted by Art. 12.

Secondly, it is now clear that textual ambiguities in the Constitution may be resolved by reference to Constituent Assembly debates (authority for this proposition may be found here, here and here). The view advanced here draws strong support from the Constituent Assembly Debates. In the Constituent Assembly, concerns regarding the textual ambiguities in Art. 12, and in particular, the meaning of the phrase ‘other authorities’ were raised. It was suggested that leaving judicial bodies out of the purview of Art. 12 may lead to the conclusion that “even a Magistrate… might pass an order, or make a notification abridging the rights that are conferred under sub-clause (a) of clause (1) of article 13.” [Constituent Assembly Debates, Vol. VII, p. 609 (1950)]. In response to this concern, Dr. B. R. Ambedkar clarified that “authority” for the purposes of Art. 12 subsumed within its scope “every authority which has got either power to make laws or the power to have discretion vested in it” [Constituent Assembly Debates, Vol. VII, p. 610 (1950)]. It is indisputable that courts fall within the purview of the latter category. (The research on Constituent Assembly Debates is sourced from Ms. Kalyani Ramnath’s article in the National Law School of India Review, available here). Notably, in recognition of the intention of the framers, the National Commission to Review the Working of the Constitution headed by Justice M. N. Venkatachaliah also made the following recommendation:

The definition of ‘the State’ in article 12 being an ‘inclusive’ one, courts have ruled that where there is pervasive or predominant governmental control or significant involvement in its activity, such bodies, entities and organizations fall within the definition of ‘the State’. It is recommended that in article 12 of the Constitution, the following Explanation should be added:- ‘Explanation – In this article, the expression “other authorities” shall include any person in relation to such of its functions which are of a public nature.’ (emphasis mine)

Finally, it appears that many provisions in Part III are, at least in part, directed at judicial bodies. A good example is the power of the Supreme Court under Art. 32 to issue the writ of certiorari. Since that power can only be exercised against judicial or quasi-judicial bodies, the view that judicial orders fall outside the purview of Part III renders it nugatory. [H. M. Seervai, Constitutional Law of India: A Critical Commentary, 4th edn., p. 394]. Another set of similar examples may be found in the rights guaranteed by Art. 20 of the Constitution. Consider for instance, the right not to be “convicted of any offence except for violation of a law in force at the time of the commission.” Since conviction cannot but be by a judicial authority, it is clear that the addressee of the right under Art. 20(1) is the judiciary. Similar is the case with the right not to be “prosecuted and punished for the same offence more than once” and the right of an accused to not be “compelled to be a witness against himself.” These rights are inexplicable on the view that judicial orders fall outside the purview of Part III.

In the light of these reasons, it is submitted that the mere fact that “judiciary” does not find express mention in Art. 12 should not lead one to the contrary conclusion. This is especially so since the nature of the definition in Art. 12 is expressly inclusive.

B. Consequences

Bringing judicial orders within the purview of Part III scrutiny may give rise to several seemingly worrying consequences. If orders made by the Supreme Court are capable of offending Part III rights, does that mean that those orders can be infinitely challenged by way of Art. 32 petitions? Are the Court’s decisions on those Art. 32 petitions then amenable to further challenge? If yes, when will this lead to a final resolution? In my view, the answer to these questions must be found in the proposition that the right guaranteed by Art. 32 is not an absolute right. The right to move the Supreme Court to enforce rights guaranteed by Part III, must itself be subject to reasonable restrictions.

It may objected that the text of Art. 32 (in contrast to Art. 19, for example) does not expressly make it subject to such restrictions. In my view, however, this is not conclusive. An interesting analogy in favour of this view may be found in the Supreme Court’s jurisprudence on Art. 26(c). That provision reads:

“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right: …(c) to own and acquire movable and immovable property.”

In Acharya Narendra Prasadji v. State of Gujarat (AIR 1974 SC 2098), the Court had occasion to consider an interesting argument concerning the scope of permissible restrictions on this right. Admittedly, the impugned legislation in that case, the Gujarat Devasthan Inams Abolition Act, 1969, did not relate to public order, morality or health which are the express grounds listed in Art. 26(c). Despite this, it was argued that the Gujarat Act imposed a reasonable restriction on the right under Art. 26(c). This argument was upheld by a Constitution bench of the Supreme Court. It was held that:

“The question, therefore, arises whether the right under Article 26(c) is an absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious denominations. No rights in an organised society can be absolute. Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others.”

If this is true for Art. 26(c), it must equally be true for Art. 32. This is especially so since, in contrast to Art. 26(c) Art. 32 only guarantees the right to move the Supreme Court “by appropriate proceedings.” This phrase is capable of being interpreted as embodying an inherent restriction on the scope of that right.

Further vindication of this view may be found in a recent line of decisions of the Supreme Court that take the view that, at least under some circumstances, the Supreme Court may exercise its discretion to not entertain Art. 32 petitions when the alternative remedy in the form of Art. 226 is available. Consider for instance, the decision in State of West Bengal v Ratnagiri Engineering Pvt. Ltd. There, a division bench of the Supreme Court held:

This writ petition has been filed under Article 32 of the Constitution for declaring the amendment brought about in the West Bengal Land Reforms Act, 1955… as unconstitutional…. In our opinion, the petitioner can file a writ petition before the High Court under Article 226 of the Constitution for this purpose. Hence, we are not inclined to entertain this writ petition under Article 32 of the Constitution.

The same approach was adopted by the Supreme Court in Satish Chandra v Registrar of Cooperative Societies, Delhi and Mohammed Ishaq v S. Kazam Pasha. In my view, the best rationalisation of these decisions is that, the court’s exercise of discretion in not entertaining these petitions constitutes a reasonable restriction on the scope of the right guaranteed by Art. 32.**

In sum, there are strong reasons in principle for concluding that judiciary must be held accountable to Part III norms. However, admittedly, accepting this view may lead to the result that Art. 32 petitions will now be filed in circumstances under which they were not previously available. In my view, an approach that addresses these consequences head-on is preferable to one that turns a blind-eye to the principled reasons that dictate a contrary conclusion. However, I have not attempted to exhaustively define how each of the circumstances under which Art. 32 petitions may be filed, can be dealt with. My attempt is only to suggest that the correct methodology for dealing with the ‘infinite regress’ problem may lie in the recognition that the right under Art. 32 is itself subject to reasonable restrictions.

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** This is not to suggest that these decisions are correct in result though. In my view, they are not. In the interests of clarity, I will briefly explain why. As per the decision in Daryao v State of U.P. it is clear that decisions of High Courts while dismissing petitions under Art. 226 constitute res judicata for the purposes of subsequent petitions under Art. 32. Thus, once a petition under Art. 226 has been dismissed by a High Court, a subsequent petition under Art. 32 will succeed only if the ground on which the former petition was dismissed is not a ground applicable to Art. 32 petitions. Now, consider this result in the light of the above decisions. This leads one to the conclusion that Art. 32 will be available to the petitioner in extremely restrictive circumstances i.e. only when the previous petition under Art. 226 was dismissed on a ground that is inapplicable to Art. 32. In more general terms, the reason why this line of decisions in wrong is not because Art. 32 is an absolute right, but because the restriction that these case impose is not a reasonable one.