Previously on this blog, we have discussed how Article 15(2) of the Constitution, which guarantees non-discriminatory access to shops, public restaurants, hotels etc., has been read expansively by the Supreme Court to cover the domain of economic transactions more generally, and can be invoked to invalidate restrictive covenanting. We have also discussed how Chief Justice Sinha’s dissenting opinion in the Saifuddin case envisages a Constitution that is equally solicitous towards horizontal asymmetries of power as it is towards State coercion upon the individual. Textually, the Indian Constitution itself is keenly cognisant of horizontal asymmetries, as it guarantees three horizontally enforceable rights (Articles 15(2), 17, and 23), and further authorises the State to recalibrate the internal relationship between religious communities in a more egalitarian direction (Article 25(2)(b)).
As we have discussed earlier, in cases such as Zoroastrian Cooperative, Saifuddin, and others, the right to horizontal non-discrimination has come up against the right to freedom of association. Interestingly, this tension is neither new nor recent. Recently, I came across an extensive discussion about this problem, dating back to pre-constitutional times. In Chapter III of his 1945 text, What Congress and Gandhi Have Done to the Untouchables, B.R. Ambedkar outlines a Memorandum that he submitted to the 1930 Round Table Conference, dealing with political safeguards for the protection of the “Depressed Classes”. After beginning with the right to equal treatment, enforceable against the State, and drawn from the American Fourteenth Amendment as well as the 1920 Government of Ireland Act, he then proposes an “offence of Infringement of Citizenship“, drawn from the Reconstruction Civil Rights Act in the United States:
“Whoever denies to any person except for reasons by law applicable to persons of all classes and regardless of any previous condition of untouchability the full enjoyment of any of the accommodations, advantages, facilities, privilege of inns, educational institutions, roads, paths, streets, tanks, wells and other watering places, of public conveyances on land, air or water, theatres or other places of public amusement, resort or convenience whether they are dedicated to or maintained or licensed for the use of the public shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.”
Implicit in this was Ambedkar’s view that equal citizenship entails equal access to public utilities, or public spaces (with an expanded definition of the “public”). Fascinatingly, he then quoted a colonial government source – a 1928 Bombay Committee Report, which had this to say:
“The Depressed Classes have no economic independence in most parts of the Presidency. Some cultivate the lands of the orthodox classes as their tenants at will. Others live on their earnings as farm labourers employed by the orthodox classes and the rest subsist on the food or grain given to them by the orthodox classes in lieu of service rendered to them as village servants. We have heard of numerous instances where the orthodox classes have used their economic power as a weapon against those Depressed Classes in their villages, when the latter have dared to exercise their rights, and have evicted them from their land, and stopped their employment and discontinued their remuneration as village servants. This boycott is often planned on such an extensive scale as to include the prevention of the Depressed Classes from using the commonly used paths and the stoppage of sale of the necessaries of life by the village Bania. According to the evidence sometimes small causes suffice for the proclamation of a social boycott against the Depressed Classes. Frequently it follows on the exercise by the Depressed Classes of their right to the use of the common well, but cases have been by no means rare where a stringent boycott has been proclaimed simply because a Depressed Class man has put on the sacred thread, has bought a piece of land, has put on good clothes or ornaments, or has carried a marriage procession with the bridegroom on the horse through the public street.
We do not know of any weapon more effective, than this social boycott which could have been invented fur the suppression of the Depressed. Classes. The method of open violence pales away before it, for it has the most far reaching and deadening effects. It is the more dangerous because it passes as a lawful method consistent with the theory of freedom of contract. We agree that this tyranny of the majority must be put down with a firm hand, if we are to guarantee the Depressed Classes the freedom of speech and action necessary for their uplift.”
The important insight here is that in a society with pre-existing asymmetries of economic and social power, such power can be leveraged in a manner so as to discipline subordinated groups through the threat of exclusion from the economic and social life of the community, and thereby, from access to the public goods required to sustain a life with dignity (whether material or cultural). It is interesting to note that the Report specifically observes that technically, the boycott is lawful because it is consistent with the principle of the freedom of contract, but nonetheless must be outlawed. Of course, freedom of contract itself assumes a formally equal and hierarchy-free society (hence, Henry Maine’s famous “from status to contract“), which is rarely consistent with reality.
Based on the report, and his own observations, Ambedkar then suggested the following definition of “boycott” which he borrowed, in part, a previous Burma law:
“A person shall be deemed to boycott another who… refuses to let or use or occupy any house or land, or to deal with, work for hire, or do business with another person, or to render to him or receive from him any service, or refuses to do any of the said things on the terms on which such things should commonly be done in the ordinary course of business, or… abstains from such social, professional or business relations as he would, having regard to such existing customs in the community which are not inconsistent with any fundamental right or other rights of citizenship declared in the Constitution ordinarily maintain with such person, or… in any way injures, annoys or interferes with such other person in the exercise of his lawful rights.”
The final text of Articles 15(2) (access to shops), 17 (prohibition of untouchability), 23 (prohibition of forced labour) and 25(2)(b) (authorising the government to make laws for access to Hindu religious institutions of a public character) together constitute a code that is a somewhat attenuated and diluted version of Ambedkar’s original – and radical – proposals: to have a Constitution that provided not only individual freedom and freedom of community, but also freedom from community. The expansive interpretations given to these articles in IMA v Union of India, Justice Sinha’s dissent in Saifuddin, and in PUDR v Union of India (which read “forced labour” to include exploiting a depressed market by refusing to pay minimum wage) represent something of an attempt to reclaim, in part, the radicalism that was lost somewhere in the framing of the founding document.
(The civil rights movement demanding equal access to public facilities, led by Ambedkar, is documented in detail by Anupama Rao in her book, Caste Question. I have recently written a paper attempting to derive an “anti-exclusion” principle from the text and structure of the Constitution, available here.)