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.