Book Review: Kalpana Kannabiran, “Tools of Justice”

Tools of Justice: Non-Discrimination and the Indian Constitution, Routledge 2012, available for purchase here.

This is a densely-argued, interdisciplinary work, focusing on non-discrimination under the Indian Constitution. The overall framework of the book centres upon Articles 15 and 21, and the link between discrimination and the deprivation of liberty. The materials that Kannabiran works with are historical, sociological, anecdotal and legal. Discrimination is examined from the perspective of numerous constituencies: disability, caste, sex, ways of life (adivasis/tribals), religion, and sexual orientation.

Clocking in at 450 pages, an overall survey in a brief review is close to impossible. What I will focus upon is a few of the key, important themes that emerge out of the text.

(i) Norm and Nature: Throughout the course of the book, Kannabiran demonstrates how the Indian judiciary, when examining discrimination cases, operates with a set of political and ideological norms, which it considers as natural. A claim of discrimination will succeed if the Court perceives that the differential treatment violates this norm, and it will fail if the Court is of the opinion that it coheres with the norm. The starkest examples are present in cases involving sex-determination. Kannabiran shows how the Court’s judgments are repeatedly driven by a set of ideas about the role that men and women do – and ought – to play in society, as well as their aptitudes and talents: women’s primary role lies in the domestic sphere, as carers, while the role of men is to actively participate in the exchange economy. Therefore, for example, where workplace regulations attach disabilities (loss of job, downpayment etc.) to pregnancy, they have been upheld by the Courts (as reinforcing the norm of the separate spheres occupied by men and women).

In other realms, it is more difficult to isolate the norm, as well as its political foundations, perhaps because the norm has become more deeply ingrained in our consciousness as natural. For instance, in the case of caste-based reservations, the Supreme Court has justified reservations on the ground that they fulfill a vision of substantive equality as opposed to mere formal equality (N.M. Thomas), and has then sought to balance the demands of substantive equality with the goal of maintaining efficiency in the civil services (Article 335 of the Constitution). The unarticulated major premise underlying this set of cases is that “efficiency”, as a normatively desirable goal, has certain requirements, which are best fulfilled through “merit-based” selection procedures. Kannabiran skilfully interrogates the assumptions that ground this idea of merit; in this way, what comes out is the fact that understanding reservations as a departure from the basic requirement of efficiency-through-merit, which must then be justified by the principle of substantive equality (and thereby putting limits on the quantum of reservations), is simply one, consciously-chosen framework that automatically defines and restricts the manner of arguments that can be made. This comes out with particular clarity in the Balaji decision, where Kannabiran points out that despite studies showing that reservations had no discernible impact on efficiency, the Court was so firmly in the grip of this belief, that it simply dismissed the findings, and created a legal fiction to the effect that reservations were simply bound to have an effect on efficiency, whatever the studies actually said.

Similarly, in disability law in the workplace, the norm is that of the “able-bodied worker”; the Courts never challenge that assumption that links the actual needs of the workplace (and associated concepts of efficiency, profit-making etc.) and the requirement of being able-bodied, and therefore miss the fact that (quoting Minae Inahara) “[the] binary categorical system which defines disability in opposition to an able-bodied norm and suggest[s] that the disabled body is a multiplicity of excess which undermines this able-bodied norm… the complexity of disabled ability does not fit into able-bodied notions of ability.” 

(ii) The Transformative Constitution: A crucial point that Kannabiran makes at the beginning of her work, and returns to repeatedly, is that the interpretation of constitutional provisions cannot be untethered from its historical context, and the goals and values that the framers were seeking to achieve. Previously on this blog, we have discussed extensively the interpretive issues that arise in the case of a “transformative Constitution” – i.e., a Constitution that is written with the express goal of transforming the political institutions or values of a society. Kannabiran points out that the purpose of the Constitution was to create “an order that displaces the unfreedoms internal to the society as well as the unfreedom of colonization… the constituent assembly, in recognition of the fact that the constitution was being introduced in an unequal and discriminatory society, debated and drafted the constitution with the explicit purpose of dislodging the status quo.”

This has important interpretive implications for the interpretation of colonial-era statutes, as well as questions of clashes between fundamental rights and a claimed public morality (where the argument is to restrict or narrow the scope of fundamental rights so that they cohere with public morality – an argument made in Naz Foundation). For instance, it is questionable whether colonial-era statutes, based upon an entirely different set of values, should enjoy the presumption of constitutionality; and, as Kannabiran points out, it becomes rather problematic when the Court, in some of its judgments, invokes the authority of Manu as a “lawgiver”, given that, arguably, one of the goals of the Constitution was to reverse the hierarchical and stratified nature of society, which, in theological imagination, is believed to owe its existence to the edicts of Manu.

This issue, however, requires far more historical excavation than is provided in the book. It is trite wisdom that no period, however revolutionary, marks a complete break with the past. Every Constitution has transformative as well as conservative elements. For instance, in the recent Tax Tribunals judgment, the Court was probably right when it held that the “Westminster model of governance”, in the specific context of judicial independence and the separation of powers, was a continuation from colonial times – and that therefore, the interpretation of constitutional provisions setting out the structures of governance would be enriched by turning to common law. Thus, we must be wary of too facile an invocation of the “transformative Constitution”: each interpretive claim must be backed up by rigorous historical reasoning.

(iii) Historical retrieval: The most interesting aspect of this book (for me) is Kannabiran’s challenge to the dogma that concepts of equality, anti-casteism, women’s rights, and so on, are imported Western concepts, and that in interpreting the Constitution, due regard must be paid to indigenous ideas of nature and society. There are two ways of responding to this claim, both of which were invoked by critics of the Supreme Court’s Koushal judgment last year. One is to argue that these “traditions” ought to play no role in constitutional interpretation; the constitution has explicitly committed itself to political liberalism through its bill of rights, judicial review and other such substantive, as well as structural, provisions. The other is to take the claim from tradition head on, and argue that it rests upon a narrow and cribbed reading of Indian history, religion and philosophy. In Tools of Justice, Kannabiran takes the latter tack. She argues that throughout Indian history, there have been powerful, dissenting Indian voices against the caste system, inequality, sexual subordination, and so on. Drawing upon the Bhakti movement, Kabirdas, Periyar, and many others, she argues that if, indeed, we are going to take into account Indian history, religion and philosophy when we interpret the meaning of our Constitutional guarantees, then this particular history has as much a claim to our attention as its opposite, dominant strand.

In his six modalities of constitutional interpretation, the legal scholar Philip Bobbitt lists tradition as one of them. In American constitutional jurisprudence, the Supreme Court treats as suspect any legislation that impinges upon rights that are “deeply rooted in American history and tradition” (e.g., the right to jury trial). Insofar as tradition is – and has been – a tool of interpretation invoked by the Indian Courts, Kannabiran argues for a radical re-reading of that very tradition.

These three themes, I think, make Tools of Justice stand out as a highly important and relevant work of recent times. I do feel, however, that often the book falls short of the goals that it lays out in its theoretical and methodological framework. It presents detailed sociological and historical analyses of caste and sex discrimination, for instance, but does not tell us – or at least, does not adequately tell us – the implications that would have for constitutional interpretation, or how it would change the outcome in specific cases. The idea of weaving in sociology and history into constitutional interpretation is a laudable one; but there must also be a distinct, legal peg on which to hang them. Or, in other words, there should be legal, interpretive tools – tools within the legal tradition that can justify and create a space for sociology and history to enter into our analysis of constitutional provisions and cases. It is in this respect – that is, in linking sociology, history and law into one, coherent interpretive scheme that is legally defensible – that Tools of Justice sometimes falls short. But for all that, it is a book that repays close study, and is highly recommended.

Foucault, Rubenfeld, Naz Foundation, and Article 15(1)

In Naz Foundation vs NCT, the Delhi High Court famously held that the word “sex” in Article 15 included “sexual orientation” as a prohibited ground of discrimination. Unlike the South African Constitution, there is no support for this proposition within the four corners of the text. What, then, justifies this interpretation? Clearly, it must be shown that sexual orientation is in some way analogous to the stipulated Article 15 grounds: religion, race, caste, sex and place of birth. One popular argument is that Article 15 – and, more broadly, Part III of the Constitution, through other provisions such as Article 25 – protects personhood: i.e., it stipulates that one’s equal moral membership in society (or, one’s right to be treated with equal concern and respect) must not be made contingent upon those characteristics most fundamental to one’s sense of personhood, or the most basic markers of one’s identity: religion, race, sexual orientation etc.

The argument from personhood is a popular one. In the United States, it was used to uphold abortion laws in Planned Parenthood vs Casey,  and subsequently invoked by Justice Kennedy in Lawrence vs Texas, the American Supreme Court case which held that criminalising homosexuality is unconstitutional:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

In National Coalition for Gay and Lesbian Equality vs Minister of Justice, the case which struck down South Africa’s sodomy law, the Constitutional Court – speaking through Ackermann J., held:

The group in question is discriminated against because of the one characteristic of sexual orientation. The measures that assail their personhood are clustered around this particular personal trait.”

There is, of course, something intuitively attractive about the personhood argument. It is, for one, closely connected with other, similarly attractive ideals, such as autonomy and dignity. The idea that there is a core set of beliefs, practices and world-views that define who a person is, and must therefore be held inviolable and subjected to no interference by the State, seems a powerful one, and speaks deeply to our conceptions about what freedom means.

There may, however, be good reasons not to advocate a personhood-based justification for Naz Foundation, or, for that matter, for the philosophy underlying Article 15 and/or Part III in too facile a manner. One set of arguments to this effect are grounded in the work of the philosopher Michel Foucault.

In his three-volume series, The History of Sexuality, Foucault argues against what he called the “repressive hypothesis”; i.e., the idea that, in the eighteenth and nineteenth centuries, sexuality was systematically “repressed” through a practice of official censorship, legal prohibition (including the criminalisation of sodomy), and the dull compulsion of social relations – and that this repression is only now beginning to be shaken off. Foucault contends, on the other hand, that a closer look at historical evidence demonstrates that the eighteenth and nineteenth centuries witnessed a proliferation of discourses about sexuality:

“Under the authority of a language that had been carefully expurgated so that it was no longer directly named, sex was taken charge of, tracked down as it were, by a discourse that aimed to allow it no obscurity, no respite… rather than a massive censorship, beginning with the verbal proprieties imposed by the Age of Reason, what was involved was a regulated and polymorphous incitement to discourse.”

This happened through numerous practices of surveillance, taxonomy, the re-classification of sins as medical aberrations, religions confessions, and so on (the complete argument may be found in chapters two and three of Volume 1). Foucault then lists four ways in which there was an “incitement” to sexualised discourse. In the second category, which he calls “a new specification of individuals”, he deals with homosexuality. In an extended passage, that deserves quoting, Foucault observes:

“As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. Nothing that went into his total composition was unaffected by his sexuality. It was everywhere present in him: at the root of all his actions because it was their insidious and indefinitely active principle; written immodestly on his face and body because it was a secret that always gave itself away. It was consubstantial with him, less as a habitual sin than as a singular nature. We must not forget that the psychological, psychiatric, medical category of homosexuality was constituted from the moment it was characterized – Westphal’s famous article of 1870 on “contrary sexual sensations” can stand as its date of birth – less by a type of sexual relations than by a certain quality of sexual sensibility, a certain way of inverting the masculine and the feminine in oneself. Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”

But this is precisely the personhood argument writ small. What Foucault is describing (and perhaps, at the same time, warning us against) is the dangers of allowing a set of acts or practices to become the full measure of human beings.

And because of this, Foucault goes on to write, “scattered sexualities rigidified, became stuck to an age, a place, a type of practice.” What is crucial to understand, ultimately, is that subordination must depend, primarily, upon classification and definition: and there is no more effective way of classifying than by holding that a certain set of actions define, or constitute, what a person is. Seen this way, personhood suddenly becomes less of an emancipatory tool, and more of a trap. It also, as Foucault points out, both ossifies and excludes: by holding that one, defined set of practices constitutes the core, immutable being of an individual, it denies the possibility of the practice itself being malleable (for instance, by excluding other forms and conceptions of sexuality) and open to change, as well as denying the same to the “individual”.

We may pause here to notice a moment of irony: in Koushal, when the Supreme Court overturned Naz Foundation, it rejected the Article 14 argument on the ground that S. 377 classified between acts and not between persons. This reasoning was excoriated on the ground that the Court simply ignored how central sexuality and sexual acts are to persons. But, as Foucault points out here, it is the acts-to-persons shift that is precisely what we should be wary about embracing too uncritically!

The application of the arguments in A History of Sexuality to personhood-based claims in constitutional law has not gone unnoticed. In a 1989 article called The Right of Privacy, Jed Rubenfeld subjected personhood-based definitions of privacy to a Foucauldian critique. As Rubenfeld reads Foucault:

“In Foucault’s description, the decision to give medical treatment to homosexuals, which became institutionalized medical practice in the nineteenth century, in fact created the “disease” of homosexuality. It generated a division be-tween homosexuals and heterosexuals that had never been absolute before, and at the same time created new institutional practices through which individuals would more and more sharply identify themselves, be identified, and be processed as homosexuals.

In a brilliant series of passages, Rubenfeld then explains the connection between classification and subordination, and how the personhood argument – by engaging in the former – undercuts its own emancipatory potential by facilitating the latter.

“Those who engage in homosexual sex may or may not perceive themselves as bearing a “homosexual identity.” Their homosexual relations may be a pleasure they take or an intimacy they value without constituting at least qua homosexual relations something definitive of their identity. At the heart of personhood’s analysis is the reliance upon a sharply demarcated “homosexual identity” to which a person is immediately consigned at the moment he seeks to engage in homosexual sex… thus, even as it argues for homosexual rights, personhood becomes yet another turn of the screw that has pinned those who engage in homosexual sex into a fixed identity specified by their difference from “heterosexuals.

Of course, it might be argued that there is no necessary connection between classification and subordination, and that identities, if put to emancipatory purposes, need not become the trap that Foucault describes them to be. To that, Rubenfeld says:

These two “moments,” [of classification and subordination] however, are not really distinct. Or rather, if we call them distinct, the impulse toward hierarchy actually precedes and produces the differentiation in identities. Obviously, differences of sexuality, gender, and race exist among us. These are not, however, differences in identity until we make them so. Moreover, it is the desire to count oneself “superior” to another, or even to count oneself “normal,” that converts such differences into those specified identities in opposition to which we define ourselves. To protect the rights of “the homosexual” would of course be a victory; doing so, however, because homosexuality is essential to a person’s identity is no liberation, but simply the flip side of the same rigidification of sexual identities by which our society simultaneously inculcates sexual roles, normalizes sexual conduct, and vilifies “faggots.” Thus personhood, at the instant it proclaims a freedom of self-definition, reproduces the very constraints on identity that it purports to resist. Homosexuality is but one instance of this phenomenon. The same flaw can be shown in the context of interracial marriage: once again, for the parties directly involved, to say that the challenged conduct defines their identity, and therefore should be protected, as-sumes that marrying out of one’s race is in some way the cataclysmic event its opponents pretend; it thus repeats the same impulse toward rigid classification presupposing the discrimination sought to be undone. Interracial marriage should be protected because it is no different from intraracial marriage, not because it is so different.”

A caveat is perhaps important here: this is not, by any means, an argument for “colour-blindness” – i.e., a legal system that ignores socially-constructed markers of identity altogether. Whether we like it or not, it is a simple truism that sexual orientation, race, caste, religion, sex and so on have been historical (and present) sites of oppression and subordination; and that subordination cannot be resolved by now ignoring their existence altogether. This is a well-worn argument in the affirmative action debate in the United States: the key, in reading Foucault, however, is the insight that in attempting to philosophically ground our anti-discrimination law in a manner that is sensitive to historical, group-based injustices, we should not fall into the trap of using “personhood” in a way that only entrenches and rigidifies group markers which – in the last analysis – cannot ultimately be the tools of emancipation.

If personhood is not the basis of Article 15, or other aspects of Part III, then what is? In his article, Rubenfeld advances what he calls the “anti-totalitarian argument“. Continuing within the broad, Foucauldian framework, he argues:

“The distinctive and singular characteristic of the laws against which the right to privacy has been applied lies in their productive or affirmative consequences. There are perhaps no legal proscriptions with more profound, more extensive, or more persistent affirmative effects on individual lives than the laws struck down as violations of the right to privacy. Anti-abortion laws, anti-miscegenation laws, and compulsory education laws all involve the forcing of lives into well-defined and highly confined institutional layers. At the simplest, most quotidian level, such laws tend to take over the lives of the persons involved: they occupy and preoccupy. They affirmatively and very substantially shape a person’s life; they direct a life’s development along a particular avenue. These laws do not simply proscribe one act or remove one liberty; they inform the totality of a person’s life.

Anti-totalitarianism, as a grounding for a right to privacy, is an interesting suggestion; for non-discrimination, it might not work so well. Another option – broadly on the lines of the South African Equality Act, is to simply identify the historic sites of discrimination, and prohibit practices that perpetuate such discrimination (South African hate speech law is expressly based on this premise), without any further assumptions about personhood. In this context, it might also be interesting to see what the Constitutional Assembly Debates have to say about historically-oppressive markers of identity, such as caste and sex, and their remedies for amelioration.

In any event, given the central place occupied by the idea of “personhood” in judicial decisions world-over (including India), this is a debate that will continue; nor is it a purely academic concern, because the philosophical ground if rights is, ultimately, what determines their reach and their limitations.

Bombay High Court on the Right to Declare “No Religion” – and more!

Last week, in a brief and interesting judgment, the Bombay High Court held that Article 25 of the Constitution requires the government to allow persons to declare “No Religion” on governmental forms that require declarations of religion. The petitioners were the members of the “Full Gospel Church of God”, which believes in Jesus Christ, but not (!) in Christianity, or any other organised religion. The Petitioners made an application to the State Government printing press to issue a gazette notification stating that they were not Christians but, rather, belonged to “No Religion”. This application was rejected. Consequently, they approached the Court, via PIL. Their prayer, which the Court quotes in its judgment, was as follows:

That this Hon’ble Court be pleased to issue writ of mandamus or any other appropriate writ, order or direction thereby directing the respondents to recognise “No Religion” as a form of religion and not to insist on writing/mentioning/specifying/quoting religion in any of its forms or declarations.”

The judgment follows a standard Article 25 framework. It cited precedent for the proposition that the term “religion” under Article 25 is not limited to theistic religions, or religions centred upon a God. Subsequently, it noted:

The right of freedom of conscience conferred upon a citizen includes a right to openly say that he does not believe in any religion, and therefore, he does not want to practice, profess or propagate any religion.”

Since the requirements of stating a religion impinged upon the freedom of conscience of atheists, the Court held that it was unconstitutional, and set aside the order of the government printing press.

So far, so unexceptionable. The Court’s judgment follows the trend in most liberal democracies that have a freedom of religion and conscience clause: the question of what constitutes a religion is for neither the courts or the clergy to decide, but for the individual. The Courts will not inquire into whether an individual’s belief system tallies with any one of a list of approved religions, but will only initiate a prima facie enquiry into the depth and sincerity of her beliefs (whether, for instance, they are central enough to her life to properly be understood as having “religious” significance), and go no further before extending constitutional protection.

If that was all, this would be a fairly straightforward case. But the position is significantly complicated by the fact that throughout its judgment, the Court runs together two very different concepts, as if they were one: the right to declare no religion, and the right against compelled disclosure of religion. In its opening paragraph, the Court states:

The contention of the petitioner is that the State cannot compel any citizen to disclose his religion while submitting forms and/or declarations. The Contention is that the petitioner has a right to claim that he does not believe in the philosophy of any religion and therefore he does not practice or profess any religion. The contention in short is that a citizen can always claim that he belongs to “No Religion”.”

But these are not the same contentions at all! Given that the Court’s own argument is that religion – in the Article 25 sense – need not be theistic at all, the fact that you are stating, on a form, that you belong to “No Religion” does not mean that you are not disclosing your religion – in fact, it means exactly the opposite: you are disclosing your “religion” as being non-theistic or a-theistic.

Even without this strained reading of “religion”, the distinction should be clear. It is the same as the difference, for instance, between asking for “Other” under the “Gender: M or F” category, and asking that nobody should be compelled to declare their gender. A guarantee against compelled disclosure of religion would amount not to an extra box stipulating “No Religion”, but either a removal of the question from forms altogether, or still another Box stating “I Prefer Not to Disclose”.

The distinction is crucial, because admittedly, the freedom to state “No Religion” – asking for parity of treatment between theists and atheists – is an Article 25 claim; but the freedom from compelled disclosure is an Article 21 privacy claim (or, to a lesser extent, an Article 19(1)(a) claim against compelled speech). The privacy claim – unlike the Article 25 argument – is not restricted to religion. It would extend to other features of one’s personality that are as central as religion, and which one could, conceivably, want to keep private: ethnicity, race, sex (perhaps). That is certainly a tenable argument (and the legal scholar Jed Rubenfeld has a brilliant conceptual defence of it here), but would require the Court to go into the niceties of privacy law, and carve out a new concept of privacy, one which goes beyond privacy-as-freedom-from-surveillance (under the Gobind-PUCL line of cases), and privacy as a private right against disclosure of sensitive medical information (the Mr X vs Hospital Z-Sharda vs Dharmpal line of cases). That, again, would be an exciting (and in my opinion, correct) development, but it would require substantially more reasoning and argument than the Bombay HC has engaged in.

The two different issues are conflated throughout the judgment, and even plague the prayer. Under clause (a) of the Prayer, the Court holds:

“We   issue   a   writ   of   mandamus   directing   the Respondents not to compel any individual to declare or   specify   his   religion   in   any   form   or   any declaration.” 

Whereas clause (b):

“We declare   that   by   virtue   of   Article   25   of   the Constitution of India, every individual has right to claim that he does not belong to any religion and that he does not practice or profess any religion.”

It is clear from the context that what the Court meant was only (b), and it (mistakenly) considered (a) equivalent to (b). But it has done both (a) and (b) – provided a guarantee against compelled disclosure, as well as brought atheists on par with theists in terms of disclosure. It will be interesting to see if this issue is subsequently resolved, and if so, in which way.