Monthly Archives: April 2016

The New Maharashtra Social Boycott Law: Key Constitutional Issues

The final version of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016 contains a few key departures from the draft bill (available here) The most important is the scope of the word “victim” under the definitional clause (S. 2(h)). The Draft Bill defines a “victim” as “any individual who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of social boycott.” The Act limits the definition to “any individual who has suffered or experienced physical or monetary harm or harm to his property as a result of the commission of social boycott.” The removal of the words “mental, psychological, emotional” has the potential to severely restrict the scope of the Act. The primary harm of a boycott is dignitarian in nature – it harms by stigamatising and excluding the boycotted person, and blocking off his access to community resources. In many cases, it will be difficult to show actual “physical” or “monetary” harm, if one was to take these terms literally.

In my view, however, there is enough reason for the Courts to interpret “physical harm” broadly, so as to include dignitarian harms. This is because many of the instances of social boycott that are expressly set out under S. 3 of the Act have nothing to do with physical or monetary harms. Section 3(i), for instance, deals with obstructing an individual from practicing any social observance or custom; 3(iii) deals with social ostracism; 3(iv) talks about shunning a community member “resulting in making the life of such member miserable.”; 3(viiii), inter alia, deals with severance of social relations; 3(xi) deals with preventing the children of the community from playing together with children of specific other families; 3(xv) deals with community expulsion. It therefore seems clear to me that if “physical harm” under S. 2(h) was to be restricted to bodily harm, large sections of the Act would become redundant. Such an interpretation is to be avoided. Consequently, a broader interpretation of the term “physical harm” is to be preferred, one that includes within its scope the kind of harm that all these sub-sections are aiming at curtailing – which is, essentially, harm to dignity.

With that out of the way, let us now examine some key constitutional issues with the Act.

(i) The Relationship between the Act and the Supreme Court ruling in Sardar Syedna Saifuddin

On this blog, we have extensively discussed the judgment of the Supreme Court in Sardar Syedna Saifuddin v State of Bombay (the Dawoodi Bohra case). Recall that in that case, a Constitution Bench of the Supreme Court struck down the 1949 Bombay Prevention of Excommunication Act. The Bombay Act defined “excommunication” as “the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature”, and went on to add that these rights included “the right to office or property or to worship in any religious place or a right of burial or cremation.” The majority held that the Act violated right of religious denominations to manage their own affairs under Article 26(b) of the Constitution, and was not saved by Article 25(2)(b)‘s social welfare or reform exception, since it outlawed even those excommunications that were made purely on religious grounds.

Now, the Maharashtra Social Boycott Act defines a “community” as “a group, the members of which are connected together by reason of the fact that by birth, conversion or the performance of any religious rites or ceremonies, they belong to the same religion or religious creed and includes a caste, sub-caste…” The focus on “religious creed” as an addendum to “religion” (notwithstanding the absence of the word “denomination”) seems to suggest that groups like the Dawoodi Bohras will fall within the definition of “community”. Now, if that’s the case, then there are a number of provisions under Section 3 that rather clearly appear to speak to precisely those situations which, the Supreme Court held in Saifuddin, fell within the protected ambit of Article 26(b). 3(i) penalises obstructing a person from observing any religious custom; 3(ii) does the same for religious rites; 3(v) deals with preventing a person from accessing religious buildings, and 3(vi) does the same for cemetaries and burial grounds (an example that was specifically taken in Saifuddin); and 3(xv), as an omnibus clause, prohibits community expulsion (read: excommunication).

It appears, therefore, that unless one were to hold that a religious creed is not a religious denomination (and thus open the floodgates to threshold litigation over whether a particular group constitutes a creed or a denomination), a significant section of the Boycott Act is unconstitutional under the interpretation of Articles 25 and 26 advanced by the Saifuddin Court. One might argue that the problem of unconstitutionality can be got around in two ways: one, by excluding from the scope of the Act instances of boycotts that are imposed purely on religious grounds. That, however, appears to do violence to the plain language of many of Section 3’s sub-clauses, which are clearly meant to deal with religion-based community exclusion. The second is a similar move – i.e., to limit the operation of the Act to instances that may properly be characterised as a “social boycott” (as the name suggests). Here again, it is doubtful whether this interpretive move is possible, since in the scheme of the Act, the social and religious boycotts are inextricably linked (See Sections 3(i), 3(ii), 3(iii) and 3(viii).

This does not mean that I am arguing for the Act to be struck down – far from it. On this blog, I’ve argued on more than one occasion that the majority in Sardar Saifuddin is incorrect, that Chief Justice Sinha’s opinion is truer to the constitutional scheme, and that the decision should be reversed. A petition asking for just that has been pending with the Supreme Court for the last thirty years. Perhaps a challenge to the Maharashtra Anti-Boycott Act will finally compel the Court to reconsider (what I consider to be) one of its most damaging precedents.

(ii) Implications for the Freedom of Assembly, Association, and the Freedom of Speech and Expression

Clearly, the Act prima facie infringes Articles 19(1)(a), (b), and (c). It is a rather trite proposition that the freedom to associate includes the freedom not to associate. Undeniably, the Act affects the freedom not to associate – in fact, that is the point! Section 3(iv) prohibits the cutting off of social or commercial ties, 3(viii) prohibits instigating others from social, religious, professional or business relations with the boycotted member – and of course, 3(xv) prohibits expulsion. The Explanation II to Section V states that persons who participate in a meeting with a view to impose a social boycott, or who vote for imposing a social boycott, are deemed to have committed an offence. This is a prima facie infringement of Articles 19(1)(a) and 19(1)(b).

There are two possible responses to this. One is to go down the route traveled by the Supreme Court in Venkataramana Devaru and by Chief Justice Sinha in Sardar Saifuddin: i.e., to view the law as furthering the mandate of Article 17’s prohibition of “untouchability”. Previously on this blog, I have argued that Justice Sinha was right in Saifuddin to read “untouchability” in a broad sense, and to include social ostracism and expulsion within its meaning. The issue then becomes a clash between rights under Article 19(1)(a) – (c) and Article 17.

The other response – and one that I am sympathetic to – is to read the “morality” restriction under Articles 19(2) – (4) as referring to constitutional morality. Previously on this blog, I have argued that a combined reading of Articles 15(2), 17 and 25(2) yield something that we can call the “anti-exclusion” principle: the Constitution respects the autonomy of groups and communities until the point (and no further) that their actions lead the exclusion of individuals from access to basic goods (including cultural goods) that are required to lead a dignified life. The Maharashtra Social Boycott law is based upon the anti-exclusion principle, and is therefore a reasonable restriction upon the Article 19 freedoms. I do feel, however, that a few of the sub-clauses of Section 3 will fail this test. For instance, I am not sure whether Section 3(xi) – dealing with preventing or obstructing children of the community from playing with children of specific families – will meet the constitutional threshold.

I do not think that anyone will actually challenge the Social Boycott Law. If that does happen though, it will certainly be an interesting situation!

PS. One interesting aspect is the reference in the Preamble to “fraternity” as a constitutional goal.

PPS. The history of anti-boycott legislation is a long one, of course. It goes back to the 1921 Burma Anti-Boycott Law, and was also proposed by Ambedkar to the Minority Rights Commission. Part of Ambedkar’s proposals were incorporated into the 1955 Protection of Civil Rights Act. Ambedkar discusses the anti-boycott law in Chapter 3 of What Congress and Gandhi Have Done to the Untouchables. 

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Two state laws (and one proposed law) with constitutional implications

Last month, Punjab passed the Indian Penal Code (Punjab Amendment) Act, which inserts a new Section 295AA into the IPC. 295AA, according to reports, prohibits “sacrilege” to the Guru Granth Sahib, and imposes life imprisonment as a punishment. I haven’t yet been able to obtain a text of the law, but if indeed the term used is “sacrilege”, it seems to me that there is a clear over-breadth problem with respect to Article 19(1)(a). It would also be interesting to see whether Section 295AA has a mens rea requirement, since that was precisely the ground on which the Supreme Court upheld Section 295A in Ramji Lal Modi’s Case – reasoning that an “intentional” insult to religious sentiments can cause public disorder, bringing the section within the scope of Article 19(2). It also seems to me that the sentence of life imprisonment is highly disproportionate, and can constitute cruel and unusual punishment, violating Article 21.

On April 11, the Maharashtra Legislative Council cleared a bill to “regulate” dance bars in the State of Maharashtra. The Hindu has an account of some of the stringent conditions imposed by the bill. Apart from the fact that the bill imposes prior restraint by subjecting all performances to the approval of the censor board, it also allegedly prohibits “vulgar” performances. Once again, this seems to be a textbook case of over-breadth under Article 19(1)(a) – quite apart from the fact that the Supreme Court itself, on more than one occasion, has specified that mere vulgarity (if it lacks a “prurient interest”) does not constitute obscenity.

Last week, Maharasthra enacted a law against social boycotts (a previous draft may be accessed here). The law prohibits social boycotts (which are defined in numerous ways, ranging from expulsion from the community, to obstructing regular business and social relations, to obstructing the performance of marriage) within communities. It is therefore applicable horizontally, and – naturally – impacts the freedom of association (which, as the Court has held, carries with it the freedom not to associate). Social boycotts – and legislative action against them – have a long history in India, as we have often discussed on this blog. Starting from school segregation in the late 19th century, to Ambedkar’s movements for water-tank and temple access in the 1920s, to the framing of the Constitution (Article 15(2)), to the Protection of Civil Rights Act, to the striking down of the Bombay excommunication law in 1962 – the history has been a bitter and contested one. Notably, the draft bill specifically prohibits excommunication, thus bringing it into potential conflict with the Dawoodi Bohra judgment. It will be interesting to see if this gets taken to the courts.

(PS. I haven’t been able to obtain the texts of any of these laws – help on this would be most welcome!)

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Sabrimala: Key Constitutional Issues

(The following post is based on my understanding of how oral arguments progressed in Court, since I do not have access to the pleadings. Pointing out of errors would be very welcome)

Arguments in the Sabarimala Temple Entry case are underway before a three-judge bench of the Supreme Court. Based upon the proceedings so far, it is important to consider the following important constitutional questions, which the Court must address in order to arrive at a satisfactory decision.

3Recall that the key issue in the Sabarimala Case is the denial of entry to women between the ages of 10 and 50, into the Sabarimala temple. This denial is justified by Rule 4 of the Kerala Hindu Places of Public Worship Rules, framed under Section 4 of the identically-named Act. Rule 3 prohibits women from entering a place of public worship “at such time during which they are not by custom and usage allowed to enter.” The first issue, therefore, pertains to the vires of the Rule itself.

A. Vires of Rule 3

As I understand it, the Intervenors (Happy to Bleed) have argued that Rule 3 is ultra vires the parent Act, since Section 3 of the Kerala Hindu Places of Public Worship Act specifies that “notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform.” When this argument was raised before the Kerala High Court twenty-five years ago, it was rejected on the ground that women between the ages of 10 and 50 did not constitute a “class” or a “section” of Hindus. This seems to me to be completely fallacious. Read plainly, a “class” or a “section” is constituted by persons sharing certain common characteristics. Women between the ages of 10 and 50 have been grouped together by the temple authorities themselves, on the stated ground that they are likely to disturb the “celibacy” of the deity. It is difficult to see how, in such circumstances, they do not constitute a “class”. Even though the historical context of the legislation was to ensure the removal of caste-based disabilities, it is crucial to note that the legislature chose not to use the word “caste”, but used the much broader “class” and “section”. To read these words narrowly, then, does not appear to me to be justifiable.

Section 3, however, also goes on to state that “Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion.” The proviso, therefore, overrides the right under Section 3 in cases of denominational institutions. In fact, the proviso echoes the language of Article 26(b) of the Constitution, insofar as according religious denominations autonomy in determining questions pertaining to religion. If, therefore, the conditions of the Proviso are satisfied, then there might be a problem: the Court could read down the Rule to be limited to situations where the proviso is satisfied. In other words, not every “custom or usage” is protected by the Rule, but only such customs are usages that fall within Article 26(b). It is doubtful whether the Court can read down Rule 3 to this extent (I doubt that it can), but it is certainly an option open to it. Consequently, let us consider other arguments.

Assuming, therefore, that the Rule has been read down to accord with Section 3, the second leg of the argument, then, would challenge the exclusion of women under the said rule as being unconstitutional. Let us therefore consider the constitutional arguments:

B. Constitutionality of Rule 3

The arguments on the constitutionality of Rule 3 would proceed along the same direction. It is well-established, in Madhu Kishwar vs State of Bihar, that custom or usage is subject to Part III of the Constitution. Therefore, the exclusion of women, insofar as it is justified purely by reference to custom, is unconstitutional (it violates Articles 14, 15 and 25(1)). And insofar as Rule 3 permits such exclusion, it is unconstitutional (I am assuming here that, as secondary legislation, the Rule is subject to Part III). However, once again, the core question remains must be addressed separately: what happens if the Rule – and the exclusion that it permits – is justified by recourse to the Constitution itself? Let us therefore move to the constitutional arguments.

C. Article 25(1) as the Foundation of the Petitioners’ Case

The Intervenors have argued that they have an Article 25(1) right to enter the Sabarimala Temple for the purposes of worship, since it is part of their constitutionally protected “practice” of religion. While in most cases, a Court would not contradict this claim, as long as it is genuinely and sincerely held, the Indian position – as we have seen earlier – is rather different when it comes to judicial intervention into questions of faith. The position is somewhat complicated by precedent: in Ismail Faruqui, the Supreme Court held that “the right to worship is not at any and every place, so long as it can be practised effectively.” However, the Court followed this up by noting “…unless the right to worship at a particular place is itself an integral part of that right.” The distinction between mosques and temples is relevant here: in monotheistic Islam, an individual mosque may not have specific religious significance – while in Hinduism, individual temples dedicated to specific deities are not substitutable in the same sense. For this reason, despite Ismail Faruqui, the right to worship at a “particular place” could well be “an integral part of… [the] right [to worship]” simpliciter in the present circumstances, especially since the Sabarimala Temple is dedicated to a specific deity.

Notable, unlike other provisions of Part III, Article 25(1) is not, in its terms, only enforceable against the State. It stipulates that “all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” Consequently, individual interference with this right (through the temple authorities), or interference by the Davaswom Board, would appear to be actionable under Article 25(1), without getting into knotty questions of maintainability under Article 12. At any rate, it is now well-established that the State’s obligations under Part III are not merely negative obligations of non-interference, but extend to guaranteeing effective exercise of fundamental rights. Consequently, at the very least, if the Petitioners’ claims under Article 25(1) stand, they can call upon State aid to enforce their right of access.

D. Article 26(b) as the Counterpoint to Article 25(1)

Article 26(b) guarantees the right of every religious denomination “to manage its own affairs in matters of religion.” This appears to be the foundation of the Respondents’ case. It is therefore worthwhile to focus upon it a little closely. To fall within Article 26(b), three conditions must be satisfied: (i) since Article 26(b) is subject to “public order, morality, or health“, that preambular clause must not be attracted; (ii) the claimant must be a “denomination”; (iii) the claim must pertain to “matters of religion“. With respect to (iii), Petitioners are not disputing that the issue of temple entry is a matter of religion (indeed, having themselves claimed a right to entry under Article 25(1), it is difficult to see how they could get out of that). To the best of my understanding, they are also not claiming that the Temple is a denominational temple – although the Supreme Court has, in the past, laid down fairly rigorous tests in determining what constitutes a “religious denomination” for the purposes of Article 26(b). Perhaps this is a question that will be raised by the amici, or one that the Court will examine independently.

Intervenors are arguing, however, that the operation of Article 26(b) is barred by the “morality” clause. In particular, they are arguing that the word “morality” is to be taken to mean “constitutional morality” – and since “gender justice” is an integral part of constitutional morality, denominational practices that go against gender justice are not protected by Article 26(b). The bar on menstruating-age women, whether one spins it as being based on the perceived uncleanliness of menstruation, or on the “celibacy” of the deity, amounts to gross gender stereotyping, and therefore violates constitutional morality.

I am sympathetic to the idea of constitutional morality, and have tried to fashion arguments based on constitutional morality myself, in the past. However, I see at least two problems with this argument, as it stands. The first is that insofar as Intervenors are relying upon Articles 14 and 15(1) to establish gender justice as being part of constitutional morality, both these Articles are expressly directed against the State. Therefore, even if one was to accept that “morality” refers to “constitutional morality”, the most that the Constitutional text seems to indicate is constitutional morality requires the State not to discriminate on the basis of gender. In fact, a closer reading of the constitutional text seems to militate against the Intervenors’ argument. Article 15(2), which is horizontally applicable, is limited to securing non-discriminatory access to “shops, public restaurants, hotels, and places of public entertainment.” Conspicuously, religious institutions are excluded. In fact, Article 25(2)(b), which deals with the throwing open of Hindu religious institutions to all sections of Hindus, is framed as permitting – but not obligating – the State to make laws for temple entry. This would seem to indicate that constitutional morality does not mandate gender equality in with respect to access to religious institutions.

Secondly, the scheme of Articles 25 to 30 suggests that the Constitutional vision strongly supports the rights of groups to cultural autonomy. Apart from Article 26(b), Article 29 guarantees the rights of minorities to preserving their language, script and culture. Now, on what basis does one argue – purely from the constitutional text – that the right to equality or gender justice necessarily overrides the principle of cultural autonomy? On which side does constitutional morality weigh heavier? I am not arguing that the Petitioners are incorrect – only that the constitutional text underdetermines the question as far as constitutional morality is concerned.

My own argument – which I’ve recently made in an article – is slightly different. The Constitution, I’ve tried to argue, is committed to an “anti-exclusion principle”: it prohibits both the State and communities from treating individuals in discriminatory ways, insofar as that discrimination blocks their access to crucial public goods, whether material or symbolic. It seems to me that access to a temple is central to equal moral membership in the cultural community, especially in a country like ours, where private and public life is suffused with religion to such an extent. The denial of entry to women on grounds such as menstruation, or breaking the deity’s celibacy, is a classic example of gender-stereotyping, which would be uncontroversially unconstitutional if done by the State. Given the place of the temple at the heart of community life, I would submit that it is similarly unconstitutional in the present situation.

E. The Temple as “Public Space”

The Bench appears to have framed the issue as a question of whether religious custom can override the right to gender equality in the context of a public temple. With respect, I do not think this is entirely correct. As argued above, the right to equality is not directly relevant in the present case, since Articles 14 and 15(1) make it clear that it is only enforceable against the State. The “publicness” of the temple is another matter altogether: I would argue that if the Court is to hold that the Sabarimala Temple is a “public temple”, then it no longer remains a “denominational” religious institution, and loses the protection of Article 26(b) without the necessity of going into the morality clause. In such a situation, the question becomes straightforward: the petitioners have a right to enter the temple under Article 25(1), and the Devaswom Board has no corresponding right to deny them entry under Article 26(b). Without the umbrella protection of 26(b), for the reasons adduced at the beginning of this post, Rule 4 is either ultra vires, or unconstitutional.

(Interestingly, during the first temple entry satyagraha in 1927, Ambedkar framed the issue as precisely being one of a right to access public spaces on an equal basis. “The issue is not entry, but equality“, he famously said).

(For another take on the issue, see Alok Prasanna’s article on FirstPost)

 

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