In the previous post, we saw how in the 60s and 70s, the Court gradually chipped away at its earlier jurisprudence: beginning with making the Principles constitutionally relevant, and then erasing their subordinate status to the fundamental rights. The consequences of these two moves are crucial. Before we examine the cases, however, a brief digression into political philosophy is apposite.
It hardly needs repeating that Bills of Rights are framed in abstract language, laying down broad principles and concepts rather than concrete conceptions. Take the classic example of “freedom”. Everyone agrees that if I am locked up in a room, my freedom is curtailed. Everyone also agrees that my inability to fly unaided is a limitation upon my actions, but not an infringement upon my freedom. My body structure and the forces of gravity, which combine to render it impossible for me to fly, are simply background conditions that structure the world in which we all live. But now consider this: my lack of money bars my access to goods and services that I otherwise want or need. Is this a violation of my freedom? The philosopher Friedrich Hayek would answer in the negative, holding that only the intentional actions of individuals – and not the impersonal workings of the market – can constitute restrictions upon liberty. G.A. Cohen, on the other hand, would argue precisely the opposite. What, then, are we to make of a constitutional clause that promises freedom? Does it embody Cohen’s vision – and thus, potentially, place an obligation upon the State to provide adequate social security – or does it embody Hayek’s vision – placing no such obligation? Or another vision altogether? To answer this question, naturally, we must investigate the basic values that underlie the Constitution in question, and going beyond that, the political, economic and social values that structure the polity that has adopted that Constitution.
The result of the Indian Supreme Court’s twenty-year incremental approach to the Directive Principles brought it to a point, I argue, where the Directive Principles finally came to assume the role of these structuring values. The best example is State of Kerala v. NM Thomas. In order to understand what was at stake in NM Thomas, recall the judgment in Champakam Dorairajan, in 1951. The government’s affirmative action program for admissions to medical and engineering colleges was struck down on Article 15 grounds, and the state’s reference to the Directive Principles (Article 46) was rejected. That same year, Parliament amended the Constitution to introduce Article 15(4), specifically allowing for affirmative action in educational institutions.
The Court’s judgment, and Parliament’s action, demonstrate a specific vision of equality running through Articles 15 and 16. Let us call this the “colour-blind conception” of equality. This holds that there is a specific harm whenever the State classifies individuals on the basis of their caste, race, sex etc. – because historically, it was these bases that were used to sort people into categories, and determine their worth. Therefore, any distribution of benefits or burdens that classifies us into groups on such grounds, is presumptively suspect. Individuals are to be treated qua individuals, and not as members of groups. That this was the animating vision of the Dorairajan court is evident from the fact that it refused to locate the permissibility of remedial affirmative action within Article 15 itself, and that it required a specific amendment from Parliament to legalise it. Cases after Dorairajan affirmed this view, treating Articles 15(4) and 16(4) as exceptions to the 14-15-16 equality code.
While the colour-blind conception of equality is individual-centric, there is a competing vision. Call it the “group-subordination” vision. This argues that groups have been the locus of historic discrimination. Thus, remedial action must take into account the subordinate status of groups (such as women, or “lower-castes), and governmental policies are perfectly legitimate if they make groups the site of redressing historic discrimination and achieving genuine present-day equality. Article 46, which was cited and dismissed by the Court in Champakam Dorairajan, specifically envisages this conception, when it refers to the interests of the weaker sections of the people.
Under the colour-blind conception of equality, NM Thomas ought to have been an easy case. The question was about the constitutionality of caste-based affirmative action in employment. Article 16 guaranteed the equality of opportunity in employment. Article 16(4) carved out a specific exception for “socially and educationally backward classes.” It was not disputed that caste-based affirmative action was not covered by the 16(4) exception. Surely, then, this was a straightforward equal-opportunities violation. Not so, said the Court. Articles 15(4) and 16(4) were not exceptions to 15(1) and 16(1), but emphatic restatements of it. In other words, remedial affirmative action for certain historically subordinated groups was no longer grounded in 15(4) and 16(4), that specifically provided for it, but implicit within the logic of the Constitutional commitment to equality itself.
What justifies this departure from precedent, and seemingly from the text as well, that speaks of “persons” under Articles 15(1) and 16(1)? The majority doesn’t say, but Justice Mathew and Justice Krishna Iyer, in their concurring opinions, do. According to Justice Mathew:
“…if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court… the guarantee of equality, before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal… today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law.”
This is crucial, because the shift from the precedent-based colour-blind vision of equality to a group-subordination conception is justified by invoking the Directive Principles in general, and Article 46 in particular. Articles 14, 15 and 16 set out the abstract concept of equality. Justice Mathew uses the Directive Principles to decide which conception – colour-blind or group-subordination – is more faithful to the Constitution. It is in this way that the Directive Principles act as structuring values. Thus, as Justice Krishna Iyer observed: “The upshot after Bharati, is that Article 46 has to be given emphatic expression while interpreting Article 16(1) and (2).”
The point is perhaps summed up best by Justice Bhagwati’s partially-dissenting opinion in Minerva Mills:
“Where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension…”
Once again, then, it is the directive principles that inform the conception of equality that Articles 14, 15 and 16 only lay out abstractly. More recently, Ashoka Kumar Thakur put the point another way, holding that “the facets of the principle of equality could be altered… to carry out the Directive Principles…”
The present argument reflects a point first made by Tripathi, long before this jurisprudence came into being. In 1972, Tripathi argued that it is the Supreme Court’s “duty so to discharge its own function of enforcing fundamental rights as not to obstruct the legislature in its respective function of applying the directive principles in the making of laws.” Drawing an analogy with the American Supreme Court’s upholding of President Roosevelt’s extensive New Deal social welfare legislations (despite no express textual peg in the American Constitution on which to hang them), Tripathi understood the Directive Principles to be performing a similar function of mitigating the social evils that spring from a laissez-faire interpretation of formal equality, the right to property and other such civil rights. Indeed, Tripathi saw the abstract wording of Part III rights as an invitation for “judicial creativity”. The aim of this essay has been to demonstrate how such creativity might best be applied in a manner that is most consistent with the text, structure and animating philosophy of the Constitution.
This argument conforms with the three-pronged holistic interpretation of Article 37 that we discussed above. It is consistent with the prohibition on enforcement, while maintaining a place for the Principles in the judicial enquiry, and saving them from redundancy. It also tracks a strain of constitutional thought that was present throughout the late stages of the freedom struggle, up to the framing of the Constitution. In her survey of the primary material, Jayal notes that economic and social rights were understood through the 1930s and 1940s as essential for securing the “meaningful” enjoyment of civil and political rights. In his 1947 Memorandum, Ambedkar specifically argued that political democracy must ensure that an individual is not forced to “relinquish… rights as a condition of receiving a privilege”, and focused on the meaninglessness of civil and political rights to the unemployed, starving and economically powerless. Ergo, even if social and economic rights were not to be made enforceable, there was strong support for the proposition that meaningful civil and political rights could not exist without being conceptualised in a way that took into account socio-economic considerations.
This tempered understanding of socio-economic rights – unenforceable yet relevant – is evident in the Constituent Assembly Debates. Consistent with the role of the principles as structural values, arguments to make them more detailed and specific were repeatedly rejected. For example, an amendment to add the prohibition of monopolies to the Directive Principle prohibiting the concentration of economic wealth did not succeed. K.T. Shah’s proposal to add “socialist” to the Preamble was met with Ambedkar pointing out that the “socialistic direction” of the Constitution was provided by the Directive Principles such as equal pay for equal work, the rejection of the concentration of economic wealth, and so on. Yet perhaps the best evidence of the framers’ intent can be gleaned by Ambedkar’s elaborate speech in defence of the Directive Principles. Ambedkar identified the goal of the Directive Principles as the achievement of “economic democracy”, complementary to “parliamentary democracy”, which was the task of the rest of the Constitution. He steadfastly refused to identify economic democracy with a particular economic or political school of thought (notwithstanding his earlier remark about the socialistic direction of Part IV), only referring ambiguously to the principle of “one man, one value”.
Ambedkar’s speech does two things. First, it affirms that there is an animating vision underlying Part IV as a whole, one that is sufficiently abstract so as not to be tied to political and economic –isms, but also sufficiently constraining (through specific provisions such as non-concentration of wealth, equal pay for equal work, and so on). And secondly, if economic democracy and parliamentary democracy are meant to be complementary and of equal importance – as the speech reflects – then the interrelation between Parts III and IV that we have proposed appears to be a seamless integration of the two. Parliamentary democracy is guaranteed by the set of individual rights located in Part III; but the substantive content of those rights – whether equality means colour-blindness or remedying group subordination, for instance; whether the free speech guarantee requires the government to adopt a laissez faire approach or permits it to remedy market inequalities guaranteeing persons an equitable access to the modes of communication (like newspapers) – these questions, that Part III leaves open, are to be resolved by determining what economic democracy under Part IV means, and informing the content of fundamental rights based upon that understanding.