Guest Post: The Case against the 103rd Amendment

(This is a guest post by Malavika Prasad. A prior version appeared here.)


The 103rd Constitutional Amendment permits the State to:

  1. make special provisions (Article 15(6)),
  2. make special provisions, including reservations in admissions to educational institutions, in addition to the existing reservations to the extent of 10%, and
  3. make provision for reservations in appointments or posts, in addition to the existing reservations to the extent of 10% for the advancement of “any economically weaker sections of citizens other than the classes mentioned” in Articles 15(4) and (5) and Article 16(4).

In this piece, I respond to Gautam Bhatia and Anup Surendranath, and make the basic structure argument against the 10% reservation for this class of beneficiaries. I do not present any analysis on the constitutionality of other “special provisions” such as scholarships, fee waivers, etc.

basicstructure

Reservations are meant to ensure that the ideal of “equal opportunity” is not a mirage for persons subordinated by social structures such as caste, gender, race, etc. This is why Article 16(4) is considered to be an emphatic restatement of Article 16(1)’s principle of equality of opportunity (see NM Thomas, Indira Sawhney and this paper examining the relationship between the two articles). Prior to the 103rd Amendment, in an ideal India in which quality education is available in public schools, a beneficiary of reservation under Articles 15(4) and (5) and Article 16(4) (let’s call them “protected groups”), from the parent’s generation ought to attain upward mobility of the degree and kind that enables their children or grandchildren to compete for the unreserved, open seats. So long as there is a steady stream of first generation learners from protected groups attending school each year with the benefit of reservation, the numbers of second and later generation learners from protected groups in the total pool of students (comprising reserved and unreserved seats) ought to grow. Growing numbers of later generation learners from these protected groups, in even unreserved seats, would be testimony to the success of a reservation program: the parental generation, being beneficiaries of reservation, gained a boost that enabled the later generations compete without the need for a similar boost. In other words, the benefit of reservation to earlier generation learners enables later generations of learners to work their way up, in educational institutions and the workforce, and out of the conditions of backwardness.

This logic is, of course, an oversimplification resorted to here only for the purpose of the argument. In reality, the conditions of backwardness that characterize OBCs are qualitatively different than those for SCs/STs. The key difference between the two is of social stigma: persons from SC communities, for instance, regardless of their attainments in education and employment, continue to face the stigma of untouchability by other members of society, a reality steadfastly recognised by the Supreme Court in 1992 Indira Sawhney, albeit with a recent and problematic departure in Jarnail Singh. A study of the castes and tribal groups classified as SC/ST, and the determinants for doing so is available in Chapter 5 of Marc Galanter’s Competing Inequalities.

The Rights of Later-Generation SC/ST/OBC Learners

After Articles 15(6) and 16(6), the number of second and later generation learners from protected groups who take up unreserved seats might diminish, notwithstanding the growing numbers of them who are capable of competing in the open channel. This would not have happened but for the Amendment, because the new set of beneficiaries under Articles 15(6) and 16(6) are to be “other” than those from the protected groups contemplated in Article 15(4) and (5) and 16(4). In other words, the new class of beneficiaries is defined in opposition to the old classes of beneficiaries. So when the State sets about following the Amendment’s instructions to name the new class of beneficiaries, it must first analyse what counts as “economic disadvantage” and then produce “indicators”. Then, it must test which persons qualify against these indicators of economic disadvantage. In doing so, the State must consider only persons who are not from the protected groups of SCs/STs or OBCs. Thus, to the extent of 10%, educationally well-to-do persons can be beneficiaries of reservations in educational institutions under Article 15(6). Likewise, classes of citizens who are adequately represented in the State services can be beneficiaries of reservations in the State services under Article 16(6). The Amendment thus cements the claim of persons from upper castes who are possibly educationally well-to-do and adequately represented in State services, on 10% of seats or posts.  

Furthermore, the new class of beneficiaries is left to the State to notify from time to time, “on the basis of family income and other indicators of economic disadvantage.” What might count as “indicators of economic disadvantage” is unclear. Since “indicators of economic disadvantage” are to be understood in conjunction with “family income”, presumably, the indicators of disadvantage will consider disadvantage that afflicts families, and thus members of families i.e. individuals. Thus, the Amendment will cement the claim of persons from educationally well-to-do and otherwise well-represented upper-castes, based solely on characteristics that are individual to them.

This damages the basic structure of the Constitution of India. To be clear, the argument is not that the Amendment excludes second and later generation learners of SC/ST/OBCs capable of accessing unreserved seats, from accessing 10% unreserved seats. This by itself is not a problem for the basic structure; it is thus no response to argue that the SC/ST/OBCs already have 50% reserved seats and thus cannot remedy the loss of potential access to unreserved seats. The argument is that the exclusion of these later generation learners, due to an a priori reservation of 10% seats for persons from the upper-castes, is a violation of the basic structure doctrine.

The Logic of Group Representation

This argument hinges on the premise that reservations, as a special provision are meant to achieve representation of communities so far either unrepresented or inadequately represented in the State. That reservations are meant to guarantee opportunity for representation was the premise of even the debates in the Constituent Assembly on Article 16 (Draft Article 10) for instance here, here, here, here and here.

If we can agree that reservations are meant to remedy inadequate representation, then I make two claims:

First: reservations in particular, unlike other special provisions, are only a fruitful remedy to persons subordinated by a structural barrier such as caste, race and gender. This follows from the purpose of reservations being to enhance the representation of those groups that are inadequately represented. Inadequate representation of certain groups is a consequence of members from those groups being held back, throughout their lives, from accessing opportunities on par with the rest of society, by other members of society. For instance, gatekeepers to social spaces such as schools, workplaces, shops etc. continue to practice untouchability, or create other onerous entry barriers for persons from SC/STs. Such continual treatment as “lesser” than others could also psychological harms and intergenerational trauma in persons from SC/STs. One’s birth into castes that are SC/ST then becomes the cause for further and cumulative disadvantage that is not only social and educational but also economic. Contrast this with persons from upper-castes who are setback by “economic disadvantage”. Such disadvantage is not caused by being systematically treated discriminatorily by other members of society. Even the framers of the 1st Constitutional Amendment which introduced Article 15(4) were conscious of the nature of economic disadvantage, as Galanter notes:

In spite of [Prime Minister Nehru’s] reluctance to talk about caste, it is clear that what was intended were not measures to erase all inequalities, but specifically those which were associated with traditional social structure. “[W]e want to put an end to . . . all those infinite divisions that have grown up in our social life . . . we may call them by any name you like, the caste system or religious divisions, etc. There are of course economic divisions but we realize them and we try to deal with them. . . . But in the structure that has grown up . . . with its vast number of fissures or divisions.”

Galanter also notes that Nehru was unwilling to accept any of KT Shah’s amendments that sought to remedy only “economic backwardness” of individuals, as opposed to social and educational backwardness of “classes”:

He then observed: “But if I added ‘economically’ I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. ‘Socially’ is a much wider word including many things and certainly including economically” (id., 9830).

Since “economic disadvantage” as contemplated in the 103rd Amendment is unlike the structural disadvantage of caste, in that it varies from individual to individual and does not result from membership in a subordinated group, there is nothing to be gained from granting reservations to persons suffering economic disadvantage. This is because the barriers facing upper-caste persons with economic disadvantage are not barriers of representation. One might respond that reservations nonetheless are sought by groups that do not seek to be better represented, because they are an immediate and tangible benefit unlike other special provisions. While that may be true of the demand for reservation by upper-castes, it is not constitutional to accede to such a demand – which is the substance of my next claim.

Equality and the Basic Structure

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Second, if reservations are to remedy the effects of caste-subordination by providing representation, then enhancing and cementing the representation of upper-castes damages democracy, which is a part of the basic structure of the Constitution of India.  This aphorism is oft-invoked in cases concerned with questions of what comprises a representative democracy (“free and fair elections”, “judicial review of governor’s powers”) and how a representative democracy can be realized (mechanisms like “one-person-one-vote”, or “secret ballot”). For instance, Justices Khanna and Mathew held, in Indira Gandhi v. Raj Narain, that the constitutional amendment immunizing the election of the Prime Minister and Speaker from judicial challenge damages the principle of “free and fair elections”, a central principle of democracy. RC Poudyal v. Union held that a marginal distortion of the “one-person-one-vote” principle does not damage representative democracy. Kuldip Nayyar held that doing away with the requirement of domicile in the State of candidacy and secret ballot in Rajya Sabha elections would not damage representative democracy. It is the what – the concept in Bhatia’s and originally Dworkin’s words – and not the how – the “conception” – that courts recognise as part of the basic structure. In all these cases, Courts appear to repeatedly uphold elements of the structure and form of democratic government as part of the basic structure.

The form and structure of democratic government cannot be an end in itself, unless all citizens are a priori free and equal to each other. Indian society however possesses deep-seated inequality perpetuated by structures such as caste, and is thus fundamentally undemocratic. Democratic government was chosen as the means to achieve substantive democracy. Dr. Ambedkar reckoned with this reality as he defended the choice to place the working of the administrative services in the Constitution:

While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.

 

If elements of the structure of democratic government (such as “free and fair elections”) are part of the basic structure of the Constitution, then the ends sought to be realized through the means of democratic government must also be part of the basic structure. In other words, the why of democracy must be equally central to the basic structure of the Indian Constitution as the how and the what of democracy.

The why of our democracy, as Ambedkar stated, is to realize equality of all persons, despite our deep social stratifications. For substantive democracy, remedying subordination by virtue of caste-membership is indispensable. The 10% reservation for upper-castes undoes this remedy, by cementing the representation of upper-caste persons based on individual criteria such as economic disadvantage. In other words, the 103rd Amendment cements the power of already well-represented groups to the detriment of protected groups. This is a fundamentally undemocratic outcome, taking us back to the status quo in 1950 which we sought to consciously progress from in promulgating the Constitution of India. Thus, the 10% reservation consciously damages substantive democracy which is a core aspect and basic feature of the Constitution of India.

Conclusion

In lieu of a conclusion, it bears mentioning that for my argument, it is irrelevant whether the 10% quota is provided over and above the 50% reservation, or within the 50% reservation such that SC/ST/OBCs are entitled only to 40%. Likewise, nothing turns on breaching the 50% rule either – which can easily be breached by a constitutional amendment so long as special provisions are seen as an emphatic restatement of the principle of equal opportunity. Instead, my argument is merely that cementing the representation of persons from upper-castes damages substantive democracy – upper castes being adequately represented in all social spaces, educational institutions, and in the services of the State. The remedy for upper-caste individuals set back by economic disadvantage lies elsewhere, but not in reservations.

Guest Post: Licensing of Internet Broadcasts under the Copyright Act: Key Constitutional Issues

(This is a guest post by Shuchita Goel.)


The statutory licensing scheme provided under Section 31D of the Copyright Act, 1957 (“the Act”) has recently faced a constitutional challenge in the Supreme Court in M/s Lahari Recording Company v Union of India (W.P. (C) 667/2018), as well as the Calcutta High Court in Eskay Video Pvt. Ltd. v Union of India (W.P. 14979 (W)/2016). A similar challenge was previously rejected by the Madras High Court in South Indian Music Companies v Union of India, on certain limited grounds.

Section 31D was introduced into the Act through Section 18 of the Copyright (Amendment) Act, 2012, that came into force on 21 June 2012. It is supplemented by Rules 29 – 31 of the Copyright Rules, 1958 (“the Rules”). The Scheme essentially grants broadcasting organisations the right to communicate to the public, by way of broadcast or performance, a previously published literary or musical work and sound recording, after giving notice of its intent to do so, and upon payment of royalties, to the owner. This notice is given after the process of determining the rate of royalty is completed by the Intellectual Property Appellate Board (“Appellate Board”):

Section 31D: Statutory licence for broadcasting of literary and musical works and sound recording

(1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.

(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board.

(3) The rates of royalty for radio broadcasting shall be different from television broadcasting and the Appellate Board shall fix separate rates for radio broadcasting and television broadcasting.

The Section has been challenged for being ultra vires Articles 14, 19(1)(g), 21, and 300A on the ground that it does not allow for a reciprocal understanding between copyright owners and their licensees. Rather, it allows any broadcasting organisation to unilaterally publish copyright owners’ works without allowing them any say in the matter, thus taking away their incentive to create original works and bear the fruit of their intellect by collecting their ‘IP reward’.

What the challenges seem to have neglected, however, is an associated issue of the constitutionality of an Office Memorandum (“Memorandum”) issued under Section 31D by the Department of Industrial Policy and Promotion (“DIPP”). In this piece, I will be arguing that this Memorandum is issued outside the competence of the DIPP and violates Articles 14 and 19(1)(g) of the Constitution.

The scope of Section 31D seemed to be limited to two modes of broadcasting i.e. radio and television, as they are the only modes of communication mentioned in both the Act and the Rules. However, the DIPP’s Memorandum issued on 5 September 2016 clarifies that “internet broadcasting” and “internet broadcasters” fall within the ambit of Section 31D, as it does not contain a prohibition on either the modes of broadcasting, or classes of broadcasters.

Arrogation of Legislative and Judicial Powers

raptor

The constitutional competence of the DIPP in issuing such a memorandum is questionable. While there is no strict separation of powers doctrine followed in India, it has been held previously to be part of the basic structure of the Constitution in Kesavananda Bharati v State of Kerala. Under Articles 73 and 162 of the Constitution, the Union and state executive authorities, too, may exercise limited functions of legislative interpretation or clarification if the statute enacted by the legislature permits them to make such determinations. Shamnad Basheer has discussed the argument of how an executive agency can give limited statutory interpretations which are necessary for rendering its own functions, and only as provided by the statute. However, the DIPP has neither been granted such authority, nor is such an interpretation necessary to its functioning. The issuance of the Memorandum is quite clearly an act of arrogation of unauthorised legislative power by the DIPP.

It is also an accepted tenet of our constitutional scheme that the power of interpreting statutory instruments lies solely with judicial or quasi-judicial authorities. The power to interpret the provisions of the Copyright Act, 1957 had been given to the Copyright Board, which was held to be a judicial body exercising predominantly judicial functions by the Madras High Court in Shamnad Basheer v. Union of India. It was later merged with the Appellate Board, which has also been held to be a judicial body exercising judicial functions in the same case. Interpreting the Act is therefore, a function of the Appellate Board as a quasi-judicial entity, and any act of interpretation made by the DIPP that extends, not clarifies, the scope of Section 31D is impermissible for want of Constitutional authority.

Arbitrary Executive Action

The arbitrariness doctrine is a well-accepted tenet of determining the scope of Article 14, where it provides a guarantee against arbitrary State action, whether exercised under authority of law or in exercise of executive power without making of law. The Supreme Court, in Om Kumar and Ors. v Union of India, has laid down the grounds to be followed to challenge an administrative action as arbitrary, where the order of the administrator needs to be examined to see if it is ‘rational’ or ‘reasonable’. The basis of inquiry is “whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken.”

Section 31D opens with the words “any broadcasting organisation desirous of communicating to the public…” The Memorandum reads “internet broadcasting” into Section 31D by virtue of the definition of “communication to the public” in Section 2(ff) of the Act. Section 2ff includes within its ambit any work or performance being made available to the public by any means of “display or diffusion”, and even goes onto clarify that communication through satellite or cable or other means of simultaneous communication to more than one household or place of residence is included within such definition. The DIPP has taken this language to mean that such communication ought to not be restricted to only television or radio broadcasting, and also includes internet broadcasting.

The opening words of the Section reflect the breadth of view taken by the legislature when it comes to the classes of broadcasters and does not refer to any class in particular. The DIPP, however, stands on shaky ground when it assumes that Section 31D allows for including different modes of broadcasting, and not only the different classes of broadcasters.

The legislature has specifically restricted the scope of Section 31D to radio and television broadcasting given the specific text of the provisions in Section 31D(3), and Rules 29(3), 29(4)(b), 29(4)(g), 29(4)(h) 30, 31(1), 31(5), and 31(6) of the Copyright Rules, 1957 where “radio” and “television” broadcasting are the only modes mentioned specifically with no indications that the language may be broadened to include “internet broadcasting” as well.

Further, if we look at Rules 29(4)(j) and 31(7)(a), the scheme seems to have been made applicable only to programmes that are scheduled to appear “on air” with pre-specified time slots. It is a fact that radio and television broadcasting are media where the time at which particular programs occur depict their relative importance to the channel, and the viewership it brings in. Internet broadcasting does not have the same drawbacks that require viewers to adhere to schedule because they may choose to consume any content at any point of time as per their wishes.

From this, it is apparent that the legislature seems to only have envisaged radio and television broadcasting as the modes of broadcasting that were to qualify for statutory licensing in India. The effect of the Memorandum is to extend the scope of Section 31D to a mode of broadcasting over the internet, when the same is neither reflected expressly in the text of Section 31D, nor supported by any judicial decisions favouring such an interpretation.

The DIPP is also mistaken when it assumes that the modes of broadcasting all have the same rules applicable to them. The Act and the Rules create a clear distinction between different modes of broadcasting (and not classes of broadcasters), reflected in their insistence on delivery of separate notices, fixation of separate royalty rates, and maintenance of separate records and books of accounts for television and radio broadcasting. The arguments of the DIPP assume that all internet broadcasters are bound by a single royalty rate, irrespective of whether they choose to broadcast over the internet, or television, or radio. This would defeat the purpose of the law because a single organisation may be both, for example, a television and an internet broadcaster. It would then be able to follow a lower rate by election, regardless of which mode it broadcasts content over. Considering all this, it is evident that the Memorandum violates Article 14 because it is arbitrary, and does not confine itself to the purview of the law laid down by the legislature.

An Unreasonable Restriction on Article 19(1)(g)

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Finally, we come to the issue of the rights of content owners under Article 19(1)(g) which includes the right to contract freely while carrying out that business or trade. However, this right may be curtailed under Article 19(6) by reasonable restrictions in public interest. The reasonableness standard has come to be equated with a proportionality analysis by the Supreme Court in Modern Dental College and Research Centre and Ors. v State of Madhya Pradesh, affirmed in Binoy Viswam v. Union of India (popularly referred to as the AADHAR/PAN judgement). The test itself consists of a conjunctive four-part analysis which begins with an enquiry into whether the purpose of imposing that limitation is legitimate. Secondly, it must be established that the measures are rationally connected to fulfilling that purpose. Thirdly, no alternative measures must be available that fulfil the same purpose with a lesser degree of limitation, and finally, the relative importance of achieving the end sought to be fulfilled by the measure ought to be adjudged vis-à-vis the social importance of preventing limitations on Article 19(1)(g).

The Memorandum, being clarificatory of an existing legal position, merely reads the language of 31D in a broad sense, without placing the inclusion of internet broadcasting within the larger objective of the Section itself. To determine if the Memorandum serves a proper purpose, we need to examine the purpose with which Section 31D was enacted as well. The Madras High Court in South Indian Music Companies (supra) discusses this, and justifies it as a limitation on Article 19(1)(g) on the following reasoning:

[Section 31D] provides for a mechanism to deal with the public interest vis-a-vis the private interest. It has been introduced by way of a public policy… It was meant to support the development and growth of private radio broadcasting. The object is also to strike at the monopoly to the detriment of the general public. [Emphasis supplied]

 

The Court thus states that Section 31D was enacted in public interest, with the intent of supporting the growth of private radio and television broadcasting. Radio broadcasting was slowly dying, where copyright owners had no incentive to license their content at low rates, and radio companies did not have the listenership that brought in high advertising revenues to pay adequate royalties to copyright owners. Thus, it was intended to allow radio broadcasters access to a mechanism where they would pay royalty at fair rates set by the IPAB (and not copyright owners) for use of their content.

The logic for television broadcasting is similar. It is pertinent to notice at this point that Section 31D does not include all forms of television broadcasting. It is very limited in scope, permitting only literary, musical and sound recording works to be broadcasted over television. This necessarily excludes visual and cinematic content. The idea was to protect a form of television broadcasting that was dying as well – synchronisation works, where music is played behind a static visual background unrelated to the music itself, and not all forms of television broadcasting. Finally, if we look at the drafting history of Section 31D as well, it was initially introduced in Parliament in 2010 with the intent of protecting only radio broadcasting. However, the final version of the amendment had included limited forms of television broadcasting as well in support of this idea.

Coming back to the Memorandum – is internet broadcasting a medium that requires protection in the public interest such that its inclusion in Section 31D acquires a legitimate purpose? Internet broadcasting is an industry on the ascendant. Out of 1.32 billion people in India, the internet has reached over 500 million in such a short period of time. Internet users are now switching from television to digital streaming services due to ease of access and diversity content they can access on demand at any time they wish. All of this means that copyright owners will retain the incentive to license their work at fairer (or even lower) royalty rates to be put up on internet broadcasting platforms because a wider audience will not only bring in increased royalties, but also wider recognition of their work, something that radio and limited television broadcasting simply cannot achieve. The argument used by the Madras High Court of striking at the copyright monopoly for radio and television broadcasting will not stand when it comes to internet broadcasting.

There, then, seems to be no prima facie public interest involved in protecting internet broadcasting as an industry which is a mode of broadcasting that is both currently flourishing, and is likely to continue doing so, keeping in mind its inherent advantages of ease and convenience of access, lower cost, and choice-based viewership capabilities. The Memorandum ought to fail the first test of proportionality and is an unreasonable restriction on the rights granted in Article 19(1)(g).

Conclusion

It is clear, therefore, that while arguments of the competence of the DIPP in issuing this Memorandum exist, there also exist potential arguments challenging its content as well. The broader effect of this Memorandum until now has been to create massive confusion and multiple challenges to licenses granted for internet broadcasting as no royalty rates have, as yet, been set by the IPAB. While the constitutionality of this Memorandum specifically is not currently under challenge yet, it would be interesting to see it taken up were the Supreme Court to hold Section 31D itself as not being ultra vires the Constitution.

Guest Post: Homosexuality, the Army, and the Constitution

(This is a guest post by Hari Kartik Ramesh.)


The judgement of the Supreme Court in Navtej Singh Johar v Union of India, and recent comments by the Chief of Army Staff, Bipin Chandra Rawat regarding the army’s commitment to resist recruiting members of the LGBTIA+ community, has raised the question of the eligibility of members of the queer community to join the various armed forces operating in the country.

While countries all across the world have been showing evolution and change in their enrolment procedures and qualifications in order to remove historical restrictions on members of the queer community, from serving in the armed forces, Indian military leaders have constantly stated their intention to shield the army from these changes. As of today approximately 51 countries across the world allow for some queer representation in the armed forces, with varying degrees of restrictions being placed in respect to specific identities, such as gay, trans, etc.

This article wishes to show that the armed forces’ argument that they are under no obligation to change from their homophobic ways, is no longer tenable in the face of contemporary change in jurisprudence regarding gender, sexuality and the armed forces as well. This article shall address the gay community’s exclusion from the army in particular.

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Article 33 of the Constitution

The members of the armed forces do not enjoy fundamental rights in the same manner as any other member of the populace, due to the operation of Article 33 of the Constitution:

  1. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
    (a) the members of the Armed Forces; or
    (b) the members of the Forces charged with the maintenance of public order;…
    …(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),
    be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Therefore, Article 33 empowers the government to restrict and reduce the rights that can be enjoyed by members of the armed forces, in pursuit of maintaining the efficiency of the army and discipline of the force. This Article is the basis on which military generals are defending their exclusionary practice. Their argument stems from the exclusion prescribed by the relevant armed forces statutes, which prevents members of armed forces from making the claim that their fundamental rights have been infringed by the ban on queer folk.

An example of this is the Supreme Court’s decision in Mohammed Zubair v Union of India (2017 2 SCC 115). The petitioner, a Muslim soldier wished to keep his beard, but his Air Force commanding officer rejected this request on the ground that it was Air Force policy for members of Air Force to shave their beards. The petitioner was given a show cause notice by the Air Force after he filed a writ petition in Punjab and Haryana High Court regarding illegality of the order, directing him to shave his beard. While the petition was pending he was released by the Air Force through Regulation 13 of the Air Force Rules. A three judge-bench in the Supreme Court held that the regulation was legal, on the basis of Article 33:

Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force. Every Armed Force raised in a civilised nation has its own ‘Dress and Deportment’ Policy … India is a secular nation in which every religion must be treated with equality. In the context of the Armed Forces, which comprise of men and women following a multitude of faiths the needs of secular India are accommodated by recognising right of worship and by respecting religious beliefs. Yet in a constitutional sense it cannot be overlooked that the overarching necessity of a Force which has been raised to protect the nation is to maintain discipline. That is why the Constitution in the provisions of Article 33stipulates that Parliament may by law determine to what extent the fundamental rights conferred by Part III shall stand restricted or abrogated in relation inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Additionally, the Supreme Court has repeatedly saved court-martial proceedings from unconstitutionality by utilizing Article 33. In Ram Swarup v Union of India (AIR 1965 SC 247), the Court held that the fact that counsel of one’s choice was not provided at the court-martial would not vitiate the court-martial’s ruling. The petitioners argued that in Suk Das & Anr v Union Territory of Arunachal Pradesh (1986 AIR 991) the Supreme Court had ruled that not providing counsel of one’s choice was violative of Article 22(1), but the court rejected this argument saying that Suk Das did not involve any armed forces personnel, and therefore was inapplicable. Indeed, the court held that even if the specific fundamental right is not mentioned and the extent to which it has been curbed has not been described in the statute, each provision will have to be assumed to affect the respective fundamental right:

We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right.

This position was further reiterated by the Supreme Court in Lt. Col. Prithi Pal Singh Bedhi v Union of India (1982) 3 SCC 140, where the court held that

Article 33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin…. ….Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act.

Not a Blank Cheque 

However, this does not give the legislature a free license to completely deny all rights to members of the armed forces, nor does it render members of the armed forces as a right-less population. Article 33 itself is clear that such restriction and abrogation must be in order to allow them to discharge duties properly and maintain discipline. It should be noticed in judgements of Mohammad Zubair and Prithi Pal Singh Bedhi, in the cited paragraphs, the court has emphasized the importance of discipline and unity within the armed forces when discussing Article 33. Therefore, restrictions to the rights must be such that they are necessary for maintaining discipline and cohesion within the armed forces.

In fact, a Constitution Bench of the Supreme Court recognized this limitation to the power wielded under Article 33 in the case of R Viswan and Ors v Union of India (1983) 3 SCC 401:

The Constitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the Armed Forces and the Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them……. The Constitution makers were obviously anxious that no more restrictions should be placed on the Fundamental Rights of the members of the Armed Forces and the Forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them…

The court cited the above case with approval in its judgement in Union of India v LD Balam Singh (2002) 9 SCC 73: 

While it is true that army personnel ought to be subjected to strictest form of discipline and Article 33 of the Constitution has conferred powers on to Parliament to abridge the rights conferred under Part III of the Constitution in respect of the members of the armed forces, but does that mean and imply that the army personnel would be denuded of the constitutional privileges as guaranteed under the Constitution? Can it be said that the army personnel form a class of citizens not entitled to the Constitution’s benefits and are outside the purview of the Constitution? To answer the above in the affirmative would be a violent departure from the basic tenets of the Constitution. An army personnel is as much a citizen as any other individual citizen of this country. Incidentally, the provision as contained in Article 33 does not by itself abrogate any rights and its applicability is dependent on parliamentary legislation.

Hence it is clear on a reading of the constitutional provision, and the case law available, that Article 33 cannot be used as an all-purpose immunity shield for the armed forces to defend themselves in cases involving the infringement of fundamental rights by the statutes.

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The Limits of Deference

The Supreme Court has tended to defer on questions of national security and public order to the legislature. However, deference does not indicate a blank cheque. For example, in Prithi Pal Singh Bedi the Supreme Court noted:

While investigating and precisely ascertaining the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Article 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of armed personnel, the court should be vigilant to hold the balance between two conflicting public interests; namely necessity of discipline in armed personnel to preserve national security at any cost, because that itself would ensure enjoyment of fundamental rights by others, and the denial to those responsible for national security of these very fundamental rights which are inseparable adjuncts of civilised life.

Now, for the Court to be able to accurately balance fundamental rights with the necessity of discipline, factual information is key. As will be shown there is no dearth of research when it comes to proving that the presence of gay men in the armed forces does not harm the discipline or efficiency of the army.

Further, in the Viswan judgement the Supreme Court also stated:

The guideline for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by Parliament is provided in Article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. …. The Central Government has to keep this guideline before it in exercising the power of imposing restrictions under Section 21 though, it may be pointed out that once the Central Government has imposed restrictions in exercise of this power, the court will not ordinarily interfere with the decision of the Central Government that such restrictions are necessary because that is a matter left by Parliament exclusively to the Central Government which is best in a position to know what the situation demands.

Thus, the court has recognised that on occasions it shall have to differ from the Government’s interpretation of the needs of the situation. In the present case, it is necessary for the court to exercise this option because if the Central Government makes the argument that gay men do not fulfil the eligibility criteria for the armed forces, it may well be based on arguments whose foundations are based on prejudicial notions of the gay community.

This is borne out by experience. If we look abroad, the reason why so many countries opposed the integration of gay men into the armed forces were based on factually inaccurate ideas such as gay men are all suffering from mental illness and the notion that once gay men are in the military, they will have an unquenchable need to have sex with men in the unit thereby hampering the cohesion and unity of the unit. In Navtej Singh Johar the Supreme Court has gone to great lengths to explain that these prejudicial and false notions of a community cannot be the basis for denying rights to them. Therefore, these arguments cannot be justified by the invocation of Article 33. Article 33 does not authorise the armed forces and the government to ignore and deny the existence of facts – to which we we now turn.

Gay Men in the Armed Forces

It is important at the outset to state that there is no provision of any statute that explicitly debars homosexual men from joining the military. Neither the Army Act, 1950, the Army Rules, 1954, The Air Force Act, 1950, the Territorial Army Act, 1948, or any other Regulation, explicitly prohibits homosexual men from joining the armed forces. Neither is homosexual intercourse explicitly made an offence in any of these statutory instruments.

The closest we have are Sections 45 and 46 of the Army Act, which provide:

Section 45-Unbecoming conduct. Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court- martial…

Section 46- Certain forms of disgraceful conduct. Any person subject to this Act who commits any of the following offences, that is to say,- is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind;…

 

Section 46, in particular, is couched in similar terms to Section 377 of the Indian Penal Code, which prohibits “acts against the order of nature”.

Now, before Navtej Singh Johar v Union of India decriminalized homosexual relations and removed them from the ambit of Section 377, the armed forces could dismiss a member of the armed forces using Rule 14 of the Army Rules, 1954, and its equivalent in the rules of the navy and air force. Rule 14 of the Army Rules allowed for termination on the ground of misconduct and empowered the Central Government to terminate the service of a member of the armed forces after their conviction by a criminal court if they feel that it is no longer desirable for that member to continue their service. Hence the armed forces did not even have to initiate court-martial proceedings if they wished to remove a gay soldier of the armed forces.

Navtej Singh Johar completely changed the situation when it decriminalized consensual homosexual intercourse and ruled that acts of consensual homosexual intercourse cannot be criminalized by the government. No longer could the armed forces rely solely on the conviction of a criminal court, if they wished to remove a soldier for partaking in consensual homosexual conduct. Instead, they would have to resort to a court-martial and invoke section 45 or 46.

As noted above, however, the Navtej Singh Johar judgement did not merely decriminalize consensual homosexual intercourse. Three opinions (Misra CJ, Malhotra J, Chandrachud J) held that it was an erroneous belief to understand homosexual intercourse as unnatural and further, in the course of holding Section 377 to be manifestly arbitrary and violative of Article 14, the judges pointed out how sexual minorities are no longer considered to be suffering from mental disorders. Consequently, an interpretation of Section 45 and 46 so as to consider consensual homosexual intercourse as “conduct unbecoming of an officer” or “conduct…of an unnatural kind” would also be unconstitutional for the same reasons Section 377 was struck down.

As discussed earlier, for this interpretation to receive the immunity granted by Article 33, it must be shown that the admission of gay men to the armed forces shall cause a problem to the discipline of the armed forces and will be a hinderance in the daily operations of the armed forces. However, the idea that lifting the ban on gay men from entering the military has a negative effect on effectiveness and leads to drop in morale is a myth which has been disproved by several studies in different countries showing the lack of any drop-in effectiveness and combat-readiness due to the induction of gay men in the military. Studies from Israel, Canada, the United Kingdom and the United States on effectiveness of the military in the aftermath of the lifting of restrictions on gay men for recruitment show that there was no drop-in effectiveness. A study from Hague Centre for Strategic Studies on LGBT Military personnel showed that there was no proof that members of the LGBT community were inherently lacking in any of the eligibility criteria for recruitment to the armed forces.

Hence the armed forces cannot distinguish Navtej Singh Johar on the basis that it did not involve any personnel from the armed forces, as it can be shown that the new interpretation of the relevant sections of the Army Act, does not affect discipline morality or unity of the armed forces. The jurisprudence evolved by courts have shown there needs to be a link between the fundamental right which is being restricted and abrogated and the discipline and functioning of the armed forces.

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Conclusion

Army Generals may be correct when they say that the military is not a vehicle for social change, but they cannot be allowed to use this to resist societal change occurring around them. It is clear from the change in jurisprudence that an exclusionary attitude towards queer community members is no longer constitutionally tenable. The armed forces cannot try to avoid their obligations to include members of the community on the basis that they are a conservative institution. Ultimately, they form an arm of the government and must abide by the same principles of fundamental rights as everybody else.

A Constitutional Muddle: The Supreme Court’s Bar Dancers Judgment

Earlier this month, the Supreme Court handed down a judgment dealing with the constitutional validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 [“the Bar Dancers Act”], and its attendant rules. The Bar Dancers Act – that had been passed after the Supreme Court struck down a prior attempt to prohibit bar dancing – effectively imposed such a stringent set of requirements as pre-conditions for granting bar dancing licenses to establishments, that it was, for all practical purposes, prohibited (not a single license had been granted since the Act came into force).

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In a judgment authored by A.K. Sikri J. (with whom Bhushan J. concurred), the Supreme Court struck down some parts of the Act and the rules, watered down others, and upheld yet others. In a word, it “relaxed” the license conditions, while upholding the overall statutory framework of licensing in the first place. But when one reads through the judgment, it is difficult to discern the guiding principles at play; instead, the different parts of the judgment seem to be at war with one another, where the logic behind striking down certain restrictions would appear to apply squarely to others as well – but is not. The judgment, then, appears to be an unsatisfactory halfway-house, with the Court fashioning a compromise that would allow bar dancing to go on, but leave substantial discretionary power in the hands of the government to control it in the manner that it chose.

What were the provisions that the Court struck down? Inter alia, a ban on bar dancing within one kilometre of a religious or educational institution, a prohibition on the same establishment being granted a license both for a discotheque or orchestra and for bar dancing, a prohibition on tipping in any form, a prohibition on serving alcohol, mandatory CCTVs, and making a license conditional on the proprietor’s “good record” and “lack of criminal antecedents.” What were the bases on which the Court did so? Inter alia, that there was no factual foundation for the State’s claims bar dancing was likely to “deprave” public morals, that bar dancers were vulnerable and trafficked into the profession, that bar dancing was not res extra commercium and indeed, was protected under Articles 19(1)(a) (freedom of expression) and 19(1)(g) (freedom of trade) of the Constitution, and that the State was “influenced by moralistic overtones.”

However, if these were the bases of striking down what the Court did strike down, then it’s difficult to understand why the Court upheld what it upheld. For example, the Court upheld a prohibition upon people “showering coins” on bar dancers, on the basis that it had a “tendency to create a situation of indecency.” Sikri J. did not specify what, exactly, “indecency” meant, and what manner of “indecency” it was concerned with here. It’s difficult to understand how, on the one hand, prohibition on alcohol was struck down on the basis that the State was only “influenced by moralistic overtones” while on the other, the prohibition on “showering coins” was upheld on grounds of decency. Next, the Court upheld the restriction restriction requiring bar dancing to stop by 11 30 PM, even though the establishments themselves could remain open longer. However, the Court provided no reason whatsoever for this, something that is particularly glaring given that it had already affirmatively found that bar dancing was protected by Article 19(1)(g), and struck down a number of other provisions on that basis. Indeed, the Court’s only answer was that five-and-a-half hours (6PM to 11 30 PM) was enough time for bar dancing. That, however, is neither here nor there; it certainly does not explain the constitutionally justifiable basis for the restriction.

The most glaring set of contradictions, however, occurs in the Court’s examination of the claim made by the Bhartiya Bargirls Union: that the prohibition of “obscene dances” as a condition of the license was unconstitutional. “Obscenity” was (familiarly) defined as “appealing to the prurient interest”, and Sikri J. responded to this argument by quoting lengthy extracts from prior judgments on obscenity to hold that the term “prurient interest” was well-defined, and based on an assessment of community standards (indeed, the Court cited community sentiment as the basis for regulating obscenity in the first place).

This examination of the Court is particularly interesting, because it demonstrates with particular starkness how contradictory impulses can be at war within the same judgment: on the one hand, the progressive and liberal impulse, which insists that bar dancing is protected under Articles 19(1)(a) and (g), calls out the State for being driven by antediluvian moral sentiments, and cites feminist literature in order to endorse the agency of the bar dancers (whose union – as noted above – was a Petitioner before the Court); and on the other, the old, conservative impulse that still feels “this far and no further“, whose acceptance of a potentially subversive activity is conditioned upon first defanging it of any subversive elements. The persistence of the faintly hilarious, quaintly antique phrase, “prurient interest”, is perhaps a reminder that a frank discussion about the legitimacy of regulating sexual expression is still something that our courts instinctively shrink from.

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It is important to note that this was a situation where the Court was not bound to keep to the established obscenity standard. In both Puttaswamy (privacy) and Navtej Johar (377), nine- and five-judge benches had made it abundantly clear that, as far as fundamental rights are concerned, invocations of community morality (that, more often than not, are nothing more than stand-ins for the moral values of a governing elite) simply cannot suffice to restrict those rights. To keep on keepin’ on with the “prurient interest” standard of obscenity, therefore, marks something of a disappointing regression in the age of Puttaswamy.

There is a deeper issue here as well, which the Court did not consider: the core issue of licensing. In fairness to the Court, that aspect was conceded by the Hotel Association (although it does find mention in the written submissions of the Bargirls Union). Once the Court accepted that bar dancing was protected under Article 19(1)(a), the requirement of a license ipso facto amounts to pre-censorship and prior restraint. We know from Brij Bhushan’s Case that prior restraint when it comes to free expression is presumptively unconstitutional, while K.A. Abbas, of course, carved out a limited exception to that rule in the case of film censorship. But the Abbas judgment was based on very specific (if flawed) logic about how cinema impacts viewers; the automatic extension of that principle is certainly not warranted without careful consideration. Consequently, that issue remains open – and hopefully, will be raised again in the future.

The bar dancers judgment, then, is a curious one: it exhibits a Court that is struggling to publicly demonstrate that it is no longer bound by hidebound notions of community morality and elite disgust about potentially subversive sexual expression – but a Court that still remains deeply, instinctively, uncomfortable with the consequences of applying a full-blooded constitutional rights jurisprudence to this domain; a Court that wants to rhetorically remove the stigma associated with bar dancing, rhetorically clarify that it is as legitimate as any other profession, but nonetheless, when it comes down to the brass tacks, continues to treat it as a potentially threatening activity in special need of State licensing and regulation. What we end up with, therefore, is performative jurisprudence that takes us to an unsatisfactory half-way house – a supposed liberalisation of the regime, but with the critical power of granting the licenses (along with vast attendant power of abuse) with the State (and in this specific case, with the Commissioner of Police).

Round-Up: ICLP Book Discussion on Rohit De’s “A People’s Constitution”

In the first half of January, the ICLP Blog organised a book discussion on Rohit De’s A People’s Constitution. The essays, in chronological order, are below:

  1. Introduction (by Gautam Bhatia).
  2. The Search for Truth in the Republic of Writs (by Suhrith Parthasarathy)
  3. Husna Bai, Sex Work, and the Constitution (by Ratna Kapur)
  4. Always of the People? (by Namita Wahi)
  5.  We (are also part of) the People (by Bo Tiojanco)
  6. The Author Responds (by Rohit De)

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – VI: The Author Responds

(This is the concluding essay in our blog Round-Table on Rohit De’s A People’s Constitution.)

I am grateful to Gautam Bhatia for hosting this discussion on A People’s Constitution. I am thankful to Gautam Bhatia, Suhrith Parthasarathy, Prof Ratna Kapur, Dr Namita Wahi and Dr Bryan Tiajocano for their generous, thoughtful and deep engagements with the book. This has really been a privilege.

Response to Gautam

Gautam Bhatia offers a marvelous summary of my book and it’s core arguments, with clarity and precision that I am envious of. I have little to add, except address two of the points he raises, as they become relevant in the later discussions.

As Gautam states, at its core the book asks what makes the Indian constitution legitimate and worth defending. Both these propositions are truisms for most lawyers, indeed, the nature of legal practice requires lawyers, even in systems whose legitimacy is far more fraught than India, to take it on their own terms. The Indian lawyer’s burden becomes easier (particularly compared to their South Asian neighbours), as Namita Wahi points out, by the fact, that the Indian constitution was a rare postcolonial constitution which was authored by Indians through a representative process. While it is impossible to have an authentically representative assembly, it’s equally necessary to not reproduce the claims made by the Congress in 1946 to be the sole national voice representing all shades of opinion.

While the Indian constituent assembly was a remarkable experiment, which made efforts towards inclusion, it is important to recognize that both at the time and later, questions were raised about its representative capacity. The socialist leadership, including Jaiprakash Narayan, Achyut Patwardhan and Kamaladevi Chattopadhyaya, who were a powerful force within the Congress refused to participate in an assembly that was not elected on adult franchise. As the assembly was based on the limitations of franchise in 1946, several influential groups like the Scheduled Caste Federation or the Justice Party had much lower representation than they would have in 1952 (or did in 1937) As the book shows, both the Communists and the Hindu majoritarian parties saw the constitution as an alien object, imposed from above without reflecting popular will or national culture. Furthermore, the constitution applied to territories and people who were not involved in its writing, including Hyderabad, Goa and Sikkim. Pooja Parmar has shown how the Constitution had limited participation and excluded representation from many tribal areas.

India’s constitutional legitimacy has been seen as being renewed through the largely uninterrupted practice of universal adult franchise and elections. As Ornit Shani shows, in How India Became Democratic, the creation of an inclusive electoral democracy went hand in hand with the making of the constitutional compact. This is why the Indian constitution did not face the kind of crisis of legitimacy that Pakistan’s early constitutions (which, like India’s, looks remarkably like the Government of India Act of 1935) or the Soulbury or Jenning’s Constitutions in Sri Lanka did.

My book addresses both these concerns, by showing how groups that did not necessarily participate in constitution making and were often written out of electoral logic and competition continued to engage and strengthen constitutional culture. At its most polemical, it argues that the constitution owed more to the engagement by those on the margins of democracy, for whom the courts and the text was the only resource in their moments of desperation or their basis for aspiring to inclusive citizenship.

Finally, critical constitutionalism in India, perhaps best articulated by Prof Upendra Baxi, has argued that the Indian constitution redeemed itself only after the adoption of PIL and engagement with substantive socio-economic rights in the 1980s and 1990s, becoming a constitution for the proletarian instead of just the “propertariat”. As I discuss later, the book shows that even in the “so called conservative period”, the court could be a resource for the poor and disenfranchised. It mines debates framed in formal procedural liberalism, to show its roots in demands for substantive justice, socio-economic claims and community identity.

This brings me to the last point identified by Gautam i.e. a close look at the contexts of these cases pushes back against another dominant narrative – that of the Nehruvian governments being “anti-market.” Politics in the Nehruvian state is often understood through the lens of class conflicts, between agrarian elites and industrial capital, with a technocratic state playing a balancing act. In a recent review essay, Sudipta Kaviraj describes the early phase of politics in India as one in which the debates were carried out primarily in the language of familiar Western democratic discourse, in terms of conflicts between the political ideals of laissez faire and state intervention, between capitalist freedom and socialist redistribution. These politics visualized the movement between social classes as central to public life, while politics based on caste and religious identity remained underground and inarticulate. Almost nostalgically Kaviraj notes that it is in the 1970s that Indian politics begins to speak a political vernacular, when the politics of caste, region and religion completely erased an earlier vocabulary of class interests, capitalism and socialism. This curiously mirrors the narrative of constitutional litigation, which suggests the first two decades were dominated by formalist debates over liberal rights to property, but after the Emergency turned towards questions of substantive distribution.

The book aims to complicate this narrative in two ways: the first, by showing that the Nehruvian government was attempting to create a new set of market norms and reshape networks of circulation, whether of goods (alcohol, beef, and cotton), capital, or of bodies. This process led to the translation of some issues as economic while others were seen as political or cultural. Thus, sex work becomes a question of morality and public health, and cow slaughter one of faith and religion, though the legal challenges arise due to questions of livelihood. Similarly, cases that read as standard invocations of individual liberty were challenges to police powers to enforce cultural practices and protect individual interests.

Response to Suhrith

Suhrith through his crisp engagement, gets to the heart of the procedural legal puzzle in the book, one faced by many of the actors and perhaps best understood by the litigating lawyer. My research shows that assertions for “substantive rights” got less traction than assertions made over procedure. Suhrith argues that this is because the former required the court to engage with competing arguments over facts and testing claims which constitutional courts were not procedurally equipped to do. This comes through most clearly in the Hanif Qureshi cases, where faced with competing reports, figures and affidavits on the economic impact of a ban on cow slaughter, Chief Justice Das complained about being lost in the “labyrinth of figures”. The nefarious consequences of being unable to ascertain facts continued when the Supreme Court upheld an absolute ban on cow slaughter in 2005, relying largely on the BJP-led Gujarat Governments report that said that the value of cow dung and urine was sufficient to keep the cow economic after its milk had dried up.

 Suhrith alerts us to the limitations and dangers of the strategies that courts have used, relying on amici or setting up commissions, and underlines the inherent limitation in the republic of writs, i.e., a reliance upon the State for facts. As a historian, I would like to underscore that constitutional adjudication was new to lawyers, litigants and judges in the 1950s and their remained a great deal of uncertainty about procedure. Shanti Bhushan in his memoirs recalls an anecdote where he decided to challenge a traffic violation ticket through a writ petition, but this involved him educating the judge on how a writ worked.

The courts and the state in 1950s were unprepared by the consequences of writs. This is, for instance, why a municipality found itself praying for time to file a response as they had not budgeted. The institution of constitutional remedies in the 1950s was a radical act, which has often been underappreciated. Prior to the constitution, while a handful of High Courts could issue writs within a circumscribed geographic area, legislation sought to render the government immune from prosecution. Various indemnity clauses made it mandatory to acquire the consent of the governor-general before the institution of proceedings against government officials, and the courts were precluded from investigating the validity of government orders. All matters relating to revenue or its collection were excluded from the jurisdiction of the high courts, ensuring that the chief objective of the colonial government remained unhindered.

Constitutional remedies were profoundly disruptive in the 1950s and opened up spaces for resistance and cooption. Lawyers and litigants turned to it in droves, and this novelty is remarked upon in law textbooks, newspapers, bureaucratic reports and memoirs. Vikram Seth who wrote much of his Suitable Boy in the shadow of his mother’s law reporters, captures some of this when Justice Chatterji remarks “the law is changing everyday. One keeps reading about writ petitions being filed before the High Courts. Well, in my day we were content with regular suits”. While politician Mahesh Kapoor follows writ petitions filed by the princes against land reforms, young lawyer Firoz Khan is admonished by the Chief Justice of Brahmpur for filing a writ against the University, and is told “I see no reason for a writ at all, young man. Your client should have gone to a munsif magistrate. If he wasn’t satisfied with his decision he could have gone to a district judge on appeal and come here on further appeal. You should spend a little time choosing the appropriate forum rather than wasting the time of the court. Writs and suits are different things, young man, two quite different things”. A fuming Firoz marked presciently, “in a few years writs will be accepted method in such cases. Suits are too slow….I hope they will be flooded with writs soon.”[1]

Response to Ratna Kapur

I am grateful to Prof Kapur for her careful reading of chapter 4, which dealt with challenges by sex workers to the anti-trafficking law, and for making explicit the ways in Husna Bai’s petition intervenes in current debates on trafficking and sex work. In particular she argues that the partnership between Indian feminists and the postcolonial state to bring about a coercive anti-trafficking law in the name of rescue and rehabilitation mirrors contemporary critiques of alliances between “conservative religious groups, progressive-left, centre- liberal, progressive secular feminist groups as well as sex work abolitionists around issues of sex work and anti-trafficking”, as well as the emergence of what Janet Halley, Prabha Kottiswaran and others have described as “governance feminism”. I am humbled by her suggestion that this chapter provides “a crucial archive for marginalised women and sexual subalterns to draw upon in contemporary constitutional rights struggles” and that the legacy of Husna Bai’s struggle can be found in undercurrents of contemporary trans rights and LGBT advocacy. As Prof Kapur underlines, this episode of claim making and organizing by sex workers remains a largely forgotten history.

I wanted to briefly expand on this “forgetting” and the process of archival excavation. When I began my research in 2009, I had expected to find most of the figures who appear in the book. The court cases involving prohibition, essential commodities and cow slaughter had become part of the formal legal canon and circulated as precedents. I was consciously looking for engagements by women, but assumed I would find it around questions of personal law, an area on which the majority of work on gender and citizenship in the 1950s has focused on. I was also aware of a body of work that focusses on partition, and the creation of gendered forms of citizenship either through linking citizenship claims by marriage or through the process of recovery of abducted women.

Husna Bai’s case wrote itself into my project, as I was surprised by the volumes of anxious bureaucratic correspondence generated by a single judge decision of the Allahabad High Court, which did not give any legal relief. I soon realized the decision had become canonical for the interpretation of the Suppression of Immoral Trafficking Act, and circulated among lawyers engaged in defending women arrested under it. As one of the earliest cases on the SITA, decided within two weeks of the act coming into force, the decision was reproduced in all leading commentaries on the act. Mazhar Hussein’s popular commentary on the SITA published in 1958 reproduced a newspaper article that described Justice Sahai’s decision, as the case had not yet been published in any law journals. In an introduction, Hussein noted that Justice Sahai had observed that sections 20 and 4(A) placed unreasonable restrictions and were hit by Articles 15 and 19 of the Constitution. I also found that similar arguments were being made by women engaged in sex work themselves, either in public protests or in their conversations with social workers and women activists.

Secondly, Husna Bai’s case helped me think about the complexities of the promise of freedom and liberty that the Constitution offered. For the women representatives in the constituent assembly, almost all of whom were active in the campaign to enact SITA, freedom in their view would not only mean formal equality between men and women, but include an active duty cast upon the state to intervene to bring about substantive equality and to free “unfree populations” like women trapped in sex work.

As the historian Daniel Botsman has argued, freedom needs to be understood as “an idea that has in modern times been used to reorder social relationships and constitute new frameworks for their management”. In making this argument, Botsman builds upon the idea of freedom as an integral part of the “reorganizing project of modern power”. The insertion of Article 23 into the Constitution and the STIA needs to be understood as facilitating the democratic state’s regulation of the sexuality of marginal women, the reimagining of prostitution as an economic problem central to the nation’s development, the replacement of the discourse of penalization with that of rehabilitation, and the legitimization of the role of welfare agencies and women social workers in the process.

Response to Namita Wahi

I greatly appreciate Dr. Namita Wahi’s rigorous examination of the arguments made in my book and pushing me to take some of the arguments further. She points out that my work rebuts the assumption that the pre-emergency court worked for the propertied by showing how it was open to and in some cases receptive of the claims of the “proletariat”. She suggests that a stronger rebuttal would be to engage with the Supreme Court’s formal property rights jurisprudence which would show that the state lost fewer cases over property rights than were “embedded in public imagination” and that these losses did not pose fundamental barriers to the state’s redistributive plans. I would concur, and look forward to reading Namita’s forthcoming history of the “Fundamental Right to Property” which I believe will fundamentally unsettle existing narratives on the court.

While my book does engage with insights on the court’s behavior, my emphasis was less on what the courts did but on why people came before the court. I see the court’s decision and final judgment as only one point, in a larger process through which a question gets constitutionalized. Lawyers are trained to treat the Supreme Court judgement as a final word on a question, to be pored over, analyzed, mined for extractable precedent and principles and in cases of unwanted results to be overturned through a judicial process. This is partly why the Chief Justice expressed great surprise at my desire to look through the entire case proceeding, when the final judgment was available. What I hope I was able to show was that for the litigations, or the people, the judgment itself was only a small part of larger process. For instance, despite the Supreme Court holding in Kaushaliya that Article 19 did not confer a right to prostitutes to practice their profession, sex workers continued to assert their right both before courts and in the public. Or in Mhd Yasin’s case, well before the Supreme Court reached a decision, the petitioner hired a drummer to announce to the public that in the case between the people and the town, the people had prevailed.

Property cases (particularly pertaining to agricultural land) made up the majority of cases before appellate courts in the 1950s, continuing a trend from the late 19th century where the majority of civil litigation was around agricultural land. This, and the existing body of work on land reform litigation, helped me decide to focus instead on other aspects of the postcolonial regulatory state. As Indivar Kamtekar has shown, the colonial state grew dramatically both in its ambitions and its personnel during the Second World War, a period when even the limited liberties and procedure available at the time were suspended. These coercive administrative technologies were eagerly embraced by the postcolonial state as part of its ambition to transform Indian society and economy, but had to be reconciled with electoral democracy and a republican constitution that promised a “community of political equals before constitutional law.”

Secondly, and again echoing Wahi’s findings, I too find that the right to property is a weak one and suggest that it’s the weakness of the right that leads to the recoding of property claims as those of free speech, equality or privacy. This innovation is particularly striking because the colonial order of rights was rooted in claims to property and custom, both of which were heavily circumscribed in the new constitutional order, and held to be morally abhorrent in public discourse. In the late 1930s, Parsis involved in the liquor trade had protested prohibition on the grounds that it destroyed their businesses   or interfered with religious practice, but in the 1950s cast their objections on the grounds of equality (the exemptions granted to various classes) or liberty.

 I appreciate Wahi’s invitation to explain what I mean by “the people”. As I mentioned, the dominant protagonists of my book include both figures like Parsi journalists and Marwari merchants who possess wealth and status along with figures like Qureshi butchers, vegetable sellers and prostitutes who are close to what the imagined figure of the subaltern would be. I would resist reading marginality merely by class status or economic wealth. Indeed, it’s not clearly evident that a vegetable seller or a prostitute would necessarily be destitute (though there are several petitions from refugees who had recently lost all their material means of support).

I argue in A People’s Constitution that independence produced a particular form of subalternity –electoral minorities who were unable to convince political parties and representatives to address their issues. The protagonists of the book had limited social capital against a state whose legitimacy was rooted in popular representation. They all belonged to groups that were vilified in public discourse- the Anglophilic Parsi, the corrupt Marwari, the cruel butcher or the immoral prostitute- and had limited opportunities for alliance building outside their own group. The basis for rights claims in colonial India had often been tied to claims to “ancient customary liberties.” For instance Muslims had argued for a long standing custom of cow sacrifice on Eid to challenge municipal regulations against cow slaughter or prostitute. However, with independence, electoral participation and representation became the basis for claim making. Unsurprisingly, these minorities were overrepresented in constitutional litigation. Constitutional law offered a way to frame their particular concerns as a generalizable problem for the broader public and private interests assumed public significance.

Wahi clearly identifies that all these groups largely live within urban areas, ranging from big cities to qasba towns, and leave out a large swathe of the Indian population. This represents the reality I found in the archive and I think offers some insight into how law and society operate in India. It is clear that the option of litigation was not available to all groups. In some ways, the ability to litigate was networked resource, available to groups that had access to capital and information. This was not determined solely by class, but was tied to the existence of informational networks, as can be seen by the sequential litigation that began to come from vegetable vendors from towns across Western UP challenging municipal licensing laws. Finally, it’s clear that legal consciousness was stronger among groups that were subjected to greater regulation and scrutiny by the state, which was often the case in urban areas. However, as work by scholars like Anand Vaidya shows, these options became available to groups like tribals, as they come under greater regulation through legislations like the Forest Rights Act.

Finally, Wahi suggests that my reading of the Nehruvian state as not being anti-market but seeking to create an alternate market ethics and forms of regulation needs to engage more seriously with American legal realism. This scholarship made a significant intervention in challenging the mythology of the “free market” and “free labour” in American public discourse and the idea that the market is distinct from the state. While appreciative of the suggestion and the scholarship, I find it less helpful to explain the situation in India in the 1950s. Living in a colonial economy, Indian politicians and thinkers, since the late 19th century demonstrated keen awareness that the “economy” that they functioned in was a bounded object created by colonial law. Dadabhai Naoroji in his “Poverty and UnBritish Rule in India” framed the existing political economy as one that far deviated from the “natural laws of the economy” and the promise of British governance. Historians like Ritu Birla and Julia Stephens have shown how vernacular merchants like Marwaris and Muslim mercantile groups were aware of how colonial law marked some of their activities as economic and others as “cultural”. By the late 1930s, when the National Planning Committee was set up, almost all shades of Indian political opinion saw an expansive role of the state in managing and developing the “national economy”. Rather than depicting the Nehruvian state as anti-market, I argue that one needs to pay attention to the kind of market and market ethics the state sought to promote. This comes out most explicitly in the chapter on commodity controls, where the state targets the petty merchant as a hoarder/usurer and an “uneconomic capitalist”, unlike large industry. In a caste society, economic activities were closely connected to ascriptive identities. Thus, the Nehruvian states attempts to reengineer production, distribution and consumption were often resisted through caste networks. This challenges conventional distinctions between “economic” and “cultural” rights as well as individual and group rights.

Response to Dr Brian Tiojanco

I am grateful to Dr Tiojanco for putting my book in conversation with the scholarship on popular constitutionalism. In particular, he notes an apparent tension in my reading of roots of Indian constitutionalism with that of Prof Bruce Ackerman’s, a scholar who both of us owe an intellectual debt to.

In his forthcoming book on world constitutionalism, Prof Ackerman argues that the Indian constitution’s durability can be attributed to the “ textual enshrinement of the principles that the founding generation had so valiantly won” and the popular legitimacy enjoyed by Nehru and the Congress party due to the memory and participation of thousands of people in the Congress led freedom struggle.

Tiojanco carefully shows how, despite the apparent contradiction, our arguments are complementary. As I show elsewhere, with their opposition to the Simon Commission and the writing of the Nehru Report and the Karachi Declaration on Fundamental Rights, the Congress had made it clear than any future constitution of India would be authored by Indians. Through successive demands for a Supreme Court, a bill of rights and the separation of the executive from the judiciary, they had made explicit a commitment to constitutionalism. However, with independence and the challenges of office, while the Congress was committed to constitutionalism in form (as demonstrated by the relative lack of interference in judicial appointments in the 1950s in contrast to other postcolonial states), they were less concerned about the content. Thus, when the constitution became an obstacle, the ruling party followed legal process and amended the constitution. In contrast, partly because they were outside the electoral game, the protagonists in my book sought shelter and fidelity to the constitutional text and constantly held the government accountable (taking seriously Zairul Hasan Lari’s plaint that the government too should learn “constitutional morality”).

In this, I owe a debt to Ackerman’s foundational scholarship where he argues that only those who are politically mobilized form a part of the people. What I hope to show is that political mobilization, particularly after independence, included many groups and peoples who were outside the consensus of the ruling party, whose engagements reinforced the constitutional charter than the Congress had played a significant role in creating. This contradiction comes through most explicitly in one of the first cases before the Indian Supreme Court on preventive detention, where the leader of the Communist Party of India was defended by the President of the Hindu Mahasabha (both parties that were critical of the constitution at the time of writing). A People’s Constitution shows that even in cases of everyday life, that were less explicitly political, constitutional litigation was enabled not by enlightened individuals but due to the existence of energized associational groups be it the Qureshi Jamaat or the Tawaif’s Association.

[1] I am grateful to Manav Kapoor and Mythili Vijaykumar for reminding me of Seth’s references.

Is the 103rd Amendment Unconstitutional?

Yesterday, the President assented to the Constitution (One Hundred and Third Amendment) Act, which introduces reservations based on economic criteria, into the Constitution. The swift passage of this amendment through both houses of Parliament (from start to finish, it took 48 hours) has raised serious questions about democratic accountability. The Amendment itself has been castigated (repeatedly) as an election gimmick, and contrary to the very purpose of providing reservations. However, this is now history: the Amendment is here, awaiting only to be notified by the Government. And so, to the only relevant legal question that remains: is the 103rd Amendment unconstitutional?

The Basic Structure

 

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It is trite – but nonetheless important – to recall that, as the Constitution stands amended, the only constitutional challenge that remains is a basic structure challenge. It is also worthwhile to remember – in order to set the context – of how high a threshold that is. Contrary to the beliefs of basic structure critics, who see the doctrine as some kind of Damocles Sword that errant judges are always threatening to drop upon the neck of democracy, the Supreme Court has almost never used basic structure to invalidate constitutional amendments. The high-profile striking down of the NJAC notwithstanding, in the forty-five years since Kesavananda Bharati, the doctrine has been used on an average of once in a decade. And in the seventy-four constitutional amendments after Kesavananda, only five have been struck down on substantive basic structure grounds (a strike rate of around 7%).

It’s also interesting to note (by way of example) what the Supreme Court has allowed to stand in the teeth of a basic structure challenge: in Nagaraj, a whole-scale restructuring of Article 16 that would effectively breach the 50% Rule (more on that in a moment), and in Poudyal, a departure from the principle of one-person-one-vote (more on that shortly, as well). Even when the Court has invoked basic structure, it has elected to use the scalpel rather than the bludgeon: in Raj Narain and in Minerva Mills – two of the starkest cases of constitutional abuse in our history, both by Indira Gandhi – the Court only snipped away a clause (granting immunity to Indira Gandhi from electoral malpractice) and a phrase (effectively getting rid of the fundamental rights chapter altogether) respectively, while upholding the rest of the (abusive) Amendments under challenge.

This is the case because the Court – conscious of the legitimacy issues with striking down a constitutional amendment – has been very careful about the language that it uses. Kesavananda Bharati didn’t say “modify”, “tinker”, or “change” – it said that a constitutional amendment cannot “damage or destroy” the basic structure. Nagaraj refined this by introducing the “width and identity” tests, making it clear that a basic structure challenge would have to demonstrate that the constitutional amendment makes the Constitution virtually unrecognisable.

The Amendment 

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Within this context, let us briefly examine the 103rd Amendment. The Amendment introduces Articles 15(6) and 16(6) into the Constitution. 15(6) allows for reservations for “economically weaker sections of citizens” other than the classes mentioned in Articles 15(4) and 15(5) (i.e. effectively, other than the SCs/STs/OBCs). Article 16(6) does the same for public employment. The quantum of reservation is fixed at 10% over and above the existing reservation for SCs/STs/OBCs. An Explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

I want to focus on three features that (in my view) can form the basis for a potentially credible basic structure challenge. The first is the “50% question.” The second is (what seems to be) the use of family income as the primary determinant of economic disadvantage. The third is potential arbitrariness.

The Challenge 

A. The 50% Rule

It has become almost an article of faith that reservations cannot cross the threshold of 50%. The roots of this stipulation lie in M.R. Balaji v State of Mysore, where the Supreme Court held that because Article 16(4) (reservations) was framed as an exception to Article 16(1) (equality of opportunity), anything more than 50% would imply that the exception was swallowing up the rule. In Indra Sawhney v Union of India, this judicial rule was affirmed once again, and a governmental notification providing for 10% reservations on the basis of economic disadvantage was struck down. However, neither Balaji nor Sawhney were concerned with the basic structure: they were considering a law and subordinate legislation, respectively.

So, is the 50% rule a part of the basic structure? In Nagaraj, the Court suggested that it is, when it noted that:

” … the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

But is there any support for this observation? The only indication that the 50% limit is so crucial that it is to be deemed as inherent in the very “structure of equality of opportunity” is found in a speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates in November 1948. Ambedkar observed that the purpose of Article 16 was to balance two competing principles – (formal) equality of opportunity, and compensation for inadequate representation in public employment. This balance was wrought by structuring Article 16 as it was (through 16(1) and 16(4)), and one example that Ambedkar specifically took to indicate what might upset this balance was a potential situation in which the quantum of reservation reached 70%.

There is, therefore, strong evidence to suggest that the 50% rule is baked into the scheme of Article 16, as its drafters intended (and as the Supreme Court later affirmed). However, it does not follow from that that an amendment to Article 16 that changes this scheme would be a basic structure violation. This is for two reasons. The first is that the basic structure is not reducible to a particular, concrete articulation of values, internal to a specific constitutional provision. It is open to Parliament – acting in its constituent capacity – to depart from the constitutional settlement that the framers encoded into Article 16. Parliament is entitled to believe that the social justice facet of 16 deserves greater importance than formal equality of opportunity, and to act upon that belief. Secondly – and more importantly – the “balancing” view of Article 16 is not even the only reasonable interpretation available. In N.M. Thomas, for example, a majority of four judges out of seven held that Article 16(4) is not an exception to 16(1), but a facet of it; in other words, 16(4) merely expresses, in explicit terms, a commitment to equality in terms of social justice that is already present in Article 16(1). Under this view, it is obvious that the 50% rule has no foundation, as that was predicated on 16(4) being an exception to 16(1).

I have defended this interpretation elsewhere, but here, I am not concerned with whether it is right or wrong. The point is that it is a legitimate interpretation of Article 16, that has been affirmed by a seven-judge bench of the Court, and which has never – technically – been overruled. Consequently, it is certainly open to Parliament to take that view, and amend Article 16 to reflect that.

Lastly – and keeping everything else aside – I am not even sure that on its terms, the 103rd Amendment commits Parliament to increasing the quantum of reservation above 50%. The Amendment only provides reservation to the extent of 10%; however, existing Articles 15(4), 15(5), and 16(4) do not stipulate that existing reservations must necessarily be at 50% – that has been achieved through legislation. Consequently, how can a basic structure challenge to the Amendment even raise the 50% argument? That argument – if it has to be raised at all – must come in when Parliament enacts a law to give effect to the Amendment.

B. Individuals and Groups

There is, I think, a more persuasive basic structure argument against the Amendment. There is one feature that distinguishes the Amendment from the rest of the scheme of Articles 15 and 16: by using the “family income” as the primary determinant of economic disadvantage, the Amendment advances a philosophy of reservation that focuses on remedying individual disadvantage (by taking the family as the unit for determining who is disadvantaged). At a very fundamental level, this departs from the kind of equality that the Equality Code (Articles 14, 15, and 16) envisages. The scheme of Articles 14, 15 and 16 is one that acknowledges the historical fact that in India, group membership has been the primary basis of institutional and structural disadvantage. One’s access to opportunity and chances of social and economic mobility have been mediated by one’s group identity – and primary, that identity has been structured around caste. The logic of reservation in India – and this dates back to pre-Independence times – has, consequently, always been that while the right to equality is an individual right, the only method of achieving substantive equality at an individual level is to take into account the disadvantages and barriers that exist on account of groups (and specifically, caste groups).

As a variant of this argument, Madhav Khosla has argued that the reason why the 103rd Amendment must fail the basic structure test is because it essentially contains internally contradictory provisions: the logic of 15(4), (5) and 16(4) (group-determined, social and educational backwardness) is at war with the logic of the new Articles 15(6) and 16(6).

While I agree that the 103rd Amendment makes a logical mess of the scheme of Equality Code, when it comes to a basic structure challenge, however, I find myself running up against the same difficulty that was faced in assessing the 50% challenge. And that is that the argument accords to the basic structure a level of specificity that it does not have, and one that the Court has consistently refused to give it. It is true that economic reservation goes against the grain of how social justice and equality have always been conceptualised in India, at least in constitutional terms. It is true that it sets up a contradiction (in terms of legal logic) between the SC/ST/OBC reservation provisions, and economic reservation. However, once again – the basic structure does not bind Parliament to any particular conception of equality and social justice. The basic structure does not require that Parliament follow the same logic, even within the same constitutional provision. The basic structure does not mandate clean, coherent, and logical drafting. All it requires is that a basic feature – in this case, “equality” – not be “damaged or destroyed.” And for me, it is difficult to see how economic reservation “damages or destroys” the concept of equality, because as long as there exists a reasonable understanding of equality that can accommodate economic reservation – and surely there does – it will be immune from a basic structure challenge.

The distinction between the level of the “concept” (which is the level at which the basic structure operates) and the level of the “conception” (which is the level at which the Amendment operates) is made clear if we consider the case of R.C. Poudyal: in R.C. Poudyal, which dealt with the accession of Sikkim to the Indian Union, one of the challenges involved a departure from the one-person-one-vote principle when it came to elections within Sikkim. It was argued that this violated the basic structure, because it went against democracy. The Court upheld it, however, noting that there were many different forms of democracy that were consistent with the concept of democracy. Similarly, there are many visions of equality – many concrete manifestations – that remain consistent with the concept of equality. A basic structure challenge can succeed only if equality itself is abrogated – for example, if Article 14 is repealed altogether, or if a Bill of Attainder is passed (which was the issue in Raj Narain).

Arbitrariness 

One last possible attack is on the grounds of arbitrariness – that is, the family income criteria has no relation with the goal of reservation. In other words – as many people have pointed out – reservation is not the remedy to the problem of poverty (reservation is about compensating for social and institutional barriers to representation). This makes mandating reservation on economic disadvantage arbitrary.

This raises a fascinating constitutional question, which is yet to be resolved: are there specific articles that are so important and crucial, that they themselves constitute basic features? In particular, are Articles 14, 19, and 21, standing alone, part of the basic structure, so that a constitutional amendment can be challenged, like an ordinary law, on the basis that it violates one of these articles?

The Supreme Court has hinted before that this might be the case; however, I am unpersuaded. It is one thing to say that if Parliament was to repeal Article 14, or 19, or 21 – taking away equality, freedom, and liberty altogether – then a basic structure challenge would lie. It is quite another to say that specific tests under 14, 19, and 21 should apply, mutatis mutandis, to a constitutional amendment.

Conclusion

There are powerful legal and constitutional arguments against economic reservation. However, what the above discussion has shown is that they operate at the level of the law: they would succeed were it the case that legislation was being tested against the basic structure.  However, it is far more difficult in the case of a constitutional amendment. Ironically, this is because of the precise reason that has given so much fodder to basic structure critics – the Court’s refusal to define it in concrete and specific terms. As long as economic reservation is defensible on a ground that is recognisable in terms of equality, the fact that it departs from how equality and social justice is presently understood in the Constitution, is no ground for striking it down. And that minimal threshold, in my view, is met by the 103rd Amendment. It is likely to survive a basic structure challenge.

 

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – V: We (are also part of) the People

(As part of our blog round-table book discussion, this is the fourth – and final part – of the substantive responses to Rohit De’s A People’s Constitution, by Bryan Dennis Tiojanco. All page numbers in brackets are references to page numbers in the book. This post will be followed by a response from the author.)

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Bryan Dennis Tojianco

Constitutions usually live only about 17 years. Only one of five constitutions reach the age of 50, which is usually when they become stable. That the Indian Constitution remains strong after almost 70 years is thus a remarkable feat in itself. It is ‘the longest surviving constitution in the post-colonial world, and it continues to dominate public life in India’, (2). Moreover, the Indian Supreme Court, which many consider ‘the most powerful constitutional court in the world’, continues to enjoy ‘tremendous public support’, (3). Three circumstances make this even more impressive. First, a national constitution is usually sturdier when the process that led to its enactment was more inclusive. The Constituent Assembly that drafted the Indian Constitution, however, was not popularly elected; the draft itself was also adopted without a public referendum. Second, constitutions enacted after 1945 have on average lived shorter lives than others. The Indian Constitution came into force in 1950. Third, with a population that is overwhelmingly poor, illiterate, and socially stratified, as well as ethnically and linguistically diverse, India lacks many conventionally listed social requisites of an enduring constitutional democracy.

The longevity (despite the odds) of the Constitution of India, the world’s largest constitutional democracy, makes Rohit De’s A People’s Constitution: The Everyday Life of Law in the Indian Republic a must-read book for constitutional scholars. It is ‘a social history of constitutional law’ in India during ‘the Nehruvian period, which begins with Jawaharlal Nehru’s appointment as prime minister in 1947 and ends with his death in 1964’, (22 & 26). Thus it covers the first decade of the Indian Constitution’s life. Because a country’s constitution needs to outlive its founding generation before it attracts enough ‘veneration’ to ensure it ‘requisite stability’, its first decade are the years when it is most fragile. How and why the Indian Constitution attracted sufficient support to survive this decisive decade is therefore an important question for constitutionalists. De’s account masterfully marshals many historical facts which help answer both in ways that enrich mainstream constitutional theories.

One such theory is that of Bruce Ackerman, who gives advance praise for A People’s Constitution:

This book offers genuinely original insights into the transformation of India’s Constitution into a living reality of social and economic life. Its emphasis on the role of ordinary citizens, and civil society organizations, provides a fascinating perspective ignored in standard accounts focusing on the statecraft of political elites in New Delhi, (back cover).

This praise is the equivalent of saying touché in a discussion—i.e., it is an admission that De makes a good point that complicates Ackerman’s own take on Indian constitutionalism. Indeed, De cites Ackerman when he refers to ‘Constitutional theorists’ who ‘have attributed the success of the [Indian] Constitution to its moment of founding, the installation of a popular nationalist movement that was led by farsighted leaders committed to the rule of law’, (5). In this ‘celebratory story of the Indian Constitution’, De writes, ‘the main heroes are its charismatic and dedicated founding fathers who enshrined the principles of the nationalist movement into the constitutional document and largely abided by it’, (6–7). It was only after ‘the sheen wore off the next generation of politicians’ that the Indian Supreme Court became ‘the site for strengthening constitutional values’, (7).

Ackerman summarizes the four stages of this intergenerational story in chapter two of his forthcoming book (on file with the author):

We begin…with Gandhi and Nehru transforming the Congress Party…into a mass movement during the first half of the twentieth century—and then turn to the…effort to constitutionalize Congress’ revolutionary politics [during the Nehruvian period], and then move to the bitter succession crises [after Nehru’s death] and finally the Supreme Court’s effort [after the crises] to establish itself as the leading defender of the constitutional principles left behind by the revolutionary Constitution established by the Founders.

What these four stages yield, argues Ackerman, is what he calls the constitutionalization of charisma: the Indian Constitution’s continuing legitimacy springs from its textual enshrinement of the principles that the founding generation had so valiantly won. American constitutionalists would routinely take this view for granted. In American constitutional culture, ‘the rule of law must appear to represent the people: law is authoritative because it is representative’.

Although De writes that A People’s Constitution ‘presents a contrary argument’ to this celebratory story, (9), I see it more as a needful complement. In several places, Ackerman seems to equate Nehru’s Congress Party with ‘We, the People of India’. Indeed, his previous work suggests that he is sympathetic to the view that only those who were politically mobilized at a republic’s founding were part of ‘The People’. In contrast, A People’s Constitution suggests that constitutional litigation enabled ‘groups that are marginal and have limited social capital amid a wider public’ and who ‘were vilified in public discourse’—i.e., ‘prostitutes, traders, or butchers’—to also gain representation as part of ‘We, the People’ by reframing their claims to fit the constitutional text, (222). De says that determining whether these marginalized litigants actually saw the Constitution as representing them ‘remains a puzzle for further inquiry’, and indeed may be ‘impossible to prove’, (219). Indeed, analogical evidence from anthropological studies of religion show that whether this is so may in fact be ‘entirely irrelevant’ since resort to a court, much like resort to a diviner or shaman, may be likely more ‘an empirical bet, the expectation and hope that particular rituals will [help resolve] practical concerns’, rather than an indicia of ‘faith or commitment’ to the idea of popular sovereignty. Be that as it may, the story De tells in A People’s Constitution offers a riveting account that such may have very well been the case.

Ackerman argues that the Indian Constitution did not need ratification because its ‘claim to speak for “We the People” had been established only through the exercise of charismatic authority by Nehru and Congress’. Nehru was easily able to constitutionally amend away judicial resistance because, during the Nehruvian period, ‘it was the living memory of the great sacrifices made by millions during the period of insurgency [led by Nehru’s Congress Party], not the constitutional text…that was the primary engine of popular legitimacy connecting the Parliament in New Delhi with the Indian people’.

De also acknowledges that ‘[t]he postcolonial state drew its legitimacy from its democratic mandate and development agenda, making it particularly hard for electoral minorities to challenge its agenda publicly’, (11). This is why these minorities ‘resorted to the courts’, (11). But De also notes that courts ‘were careful about what they struck down’ because they ‘remained conscious of the fact that these laws had been enacted by a popularly elected government that enjoyed both democratic legitimacy and popular authority’, (220). This proved problematic for electoral minorities, considering that ‘[t]he ambition of the postcolonial state was to reshape both society and the economy’ and ‘[t]he Constitution created a powerful central government with vast revenue-raising powers and virtually blanket powers of legislation,’ (23). Thus ‘[t]he police powers of the state expanded massively at the same time that democratic processes were being implemented’, (24).

Here we encounter what Edmund Morgan calls ‘the central problem of popular sovereignty’: ‘the problem of setting limits to a government that derived its authority from a people for whom it claimed the sole right to speak’. While Morgan notes that it is impossible to empirically demonstrate this claim, his 17th–18th century history of popular sovereignty in England and America is a tale of intergenerational efforts ‘to bring the facts into closer conformity with the fiction’ in ways that ‘gradually transformed the very structure of society’. Because the idea of popular sovereignty ‘tended to draw more and more actual people into the political process,’ writes Morgan, it enabled more and more of them ‘to translate abstractions into practice’ and thus ‘give a plausible factual basis to the fictions of popular sovereignty’. This, in turn, worked to set limits on popular government—thus helping resolve popular sovereignty’s central problem.

Similar to Morgan’s history, A People’s Constitution shows that the Indian Constitution allowed ‘some of India’s most marginal citizens’ to lead a process that ‘profoundly transformed everyday life in the Indian republic’, (9):

the Constitution…came so alive in the popular imagination that ordinary people attributed meaning to its existence, took recourse through it, and argued with it…Much to the surprise of politicians and bureaucrats across the country, Indians from all walks of life began flooding the courts and the public sphere with claims based on the Constitution’, (9).

The Congress Party established judicial review partly because part of its crusade was against the colonial regime’s arbitrariness, and it had promised that the ‘new regime would set itself apart from the colonial regime by reclaiming and instituting the rule of law’, (15). Thus, as Ackerman also acknowledges, the Indian Supreme Court ‘was far from silent’ during the Nehruvian period, and ‘identified a host of issues on which it could speak authoritatively without provoking a parliamentary override’. For Ackerman the main implication of this for constitutionalism was to bring about ‘a cultural revolution within the legal profession’: lawyers started to accept judicial review as a matter of course, and with the gradual accumulation of precedents striking down legislative initiatives, ‘the legal order’s self-confidence increased, creating a supportive environment for the professionally disciplined development of constitutional doctrine’.

For De, the ‘central actor’ of this revolution in constitutional culture was not the lawyer, but ‘the citizen litigant’, (26). They were the

thousands of individuals who turned to the court…from groups that were marginalized both socially and economically in independent India. Although only a few could be considered to be absolutely poor, many participated in the informal economy or were rendered marginal because of their religion or their sex. This diverse group of litigants included prostitutes, Muslim butchers, Hindu refugees, Muslims who had been evicted from their homes, vegetable vendors, and even the occasional peasant rebel’, (27).

Thus De suggests that ‘the constitutional culture of the 1950s was shaped predominantly by the interventions of certain marginal groups’, (222). These interventions enabled marginal ‘citizens to insert themselves into an elite conversation’, and ‘compelled state authorities, including high-ranking bureaucrats and ministers, to come to court to defend their policies. It also required them to respond specifically to the claims made by the litigants’, (25).

Take De’s account of Prohibition in India, for example. Prohibition had been a central plank of the Congress Party since the mid-1920s, and it ‘enjoyed support from a wide cross-section of the party,’ (39). Moreover, ‘[a]s a favorite project of Gandhi’s, Prohibition gained a degree of moral sanctity after his death’, (72). The Constitution, however, provided ‘a structure within which Prohibition could be resisted and negotiated’ that ‘transformed the debate over Prohibition in ways that the Constitution drafters had not anticipated,’ (34). Because the Constitution provided both ‘a space where the state’s vision of social order could be contested, and…a neutral language to challenge the democratic legitimacy that was enjoyed by the state’, constitutional litigation ‘increasingly emerged as a means through which the state policy could be safely critiqued’, (72). This strategy proved successful. As Bhatia eloquently puts it in his introduction to this series, ‘the exceptions that the Supreme Court mandated to the prohibition regime – for instance, that of medicinal alcohol – ultimately grew so unwieldy, that they destroyed the regime from within’.

De bolsters his point by adding another crucial item to the conventional list of fundamental changes to its colonial past (universal adult suffrage, an interventionist government, a liberal rights regime, and judicial review) that the Indian Constitution introduced. The Indian Constitution made India a ‘Republic of Writs’, (9), says De, by giving every citizen ‘the right to constitutional remedies’, (10). This set of innovations

allowed any citizen of India to petition the Supreme Court for the enforcement of fundamental rights granted in the Constitution. The powers granted to the state and provincial high courts (i.e., the appellate courts) were even wider: they were empowered to issue remedies in forms of writs against the state for the violation of fundamental rights, legal rights, and “any other matter”, (10).

 

Thus these remedies ‘empowered citizens to challenge laws and administrative action before the courts and greatly enhanced the powers of judicial review’, (10). I italicized part of this quote to emphasize that judicial review is not the same as the right to constitutional remedies. Recall that Marbury v. Madison, the United States Supreme Court’s 1803 decision which established judicial review in that country, ultimately ruled that even though Marbury was entitled to a writ of mandamus, the Court did not have the jurisdiction to issue it. In contrast, the Constitution of India gives the Indian Supreme Court and every High Court the power to issue writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari for the enforcement of fundamental rights.

De notes that this broad right to constitutional remedies (alongside the other breaks with India’s colonial past) ‘led to a massive explosion of litigation before the Indian courts’ and ‘radically transformed the practices of governance in ways the Constitution drafters did not expect’, (10). In the Constitution’s first year, ‘the Supreme Court heard more than 600 writ petitions’, and ‘[b]y 1962 the Supreme Court had heard 3,833 such cases’, (11). A People’s Constitution can be read as a story of how this immediate impact of the broad right to remedies greatly bolstered the legitimacy of India’s Constitution during its decisive first decade.

(The author is a post-doctoral fellow at the National University of Singapore.)

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – IV: Always of the People?

(As part of our blog round-table book discussion, this is the third – and penultimate – of the substantive responses to Rohit De’s A People’s Constitution, by Namita Wahi).

namita wahi
Namita Wahi

Rohit De’s book, “A People’s Constitution: The Everyday Life of the Law in the Indian Republic” is a deeply informative, discursively deliberate, and delightfully entertaining, account, of how the “people” or “ordinary Indians”, often from minority or subaltern groups in India, not only engaged with the Indian Constitution but also transformed its application to their daily lives. In doing so, De argues that the “people” parleyed on equal terms with the state, which would not have been possible without the text of the same “Constitution”, that has been variously critiqued in scholarly literature as “undemocratic”, an “elite” project, and “an alien imposition” on the people of India. In focusing on the “individual litigant”, rather than “judges”, “lawyers”, or the “occasional politician” as the central actors of the story, De uses his elite access to the Supreme Court’s archives as law clerk to former Chief Justice K G Balakrishnan, to illuminate instead the lives and livelihoods, and trials and tribulations of what he describes as “non elite, marginalised” groups. These four groups include Parsi liquor business owners and operators, Marwari businessmen trading in state controlled commodities, Muslim Qureshi community butchers, and urban sex workers.

De’s unpretentious prose is interspersed with charming little details and newspaper cartoons about the motivations of policymakers and civil society groups who created the objectionable laws that were the subject of challenge from these four groups of “individual litigants”, and the mechanisms used by policy makers to build consensus amongst the “people” for such laws, which in turn provoked resistance from groups that De also terms the “people”.  Though loquacious at times, De tells a compelling story, and presents a textured analysis both of the processes by which laws were made in the first two decades post independence, and how they were sought to be unmade by “ordinary litigants”.

I applaud De’s scholarly excavations through the Supreme Court’s untouched archives, and find his arguments and claims in the book broadly persuasive. Below, I share some thoughts on these claims, not with a view to disagree with them, but in the hope of pushing De and other scholars to establish some of these claims more forcefully.

First, De claims, that despite the flaws in its drafting which have led some to label it as an “elite” or “alien” constitution, the Indian Constitution provided ample scope for “ordinary people” to litigate its guarantees before the Supreme Court, and in doing so, to indigenise and ordinarise it. Here, I must add, that as I have written elsewhere, the Indian Constitution was the first constitution of a commonwealth country drafted and adopted by its own nationals, which makes it more indigenous than most constitutions that came before, and most that came after. So, in my own scholarship, I have not strongly felt the burden of this criticism. But insofar as this critique of the Constitution’s legitimacy is deeply embedded within existing constitutional scholarship especially amongst historians, anthropologists, and political scientists, and continues to cause unease amongst legal scholars as noted by Gautam Bhatia in his introductory post about De’s book, it is important to take this critique head on and I welcome De’s attempt to do so in his book.

Second, De claims that, contrary to the entrenched conventional narrative about the Supreme Court, which regarded it as a Court for the “propertariat” before the emergency, and the court of the “proletariat” thereafter, in actual fact, the Court gave a voice to the “proletariat” even during the period that it was most vilified as the court of the “propertariat”. Again, I have sympathy with this claim, having sought previously to rebut it in my doctoral thesis “The Right to Property and Economic Development in India” (2014), which studies the constitutional property rights jurisprudence of the Court, that has been responsible in large part for the court’s infamy on this count. De’s painstaking description and analysis of the backgrounds of the “individual litigants”, some as religious, and others as gender minorities, and as coming from a lower social and economic status, go a considerable distance in rebutting the “propertariat” image of the Court.

Third, De suggests that the proof of the pudding is not always in the eating; it is also in the preparation of it. De demonstrates that ultimately, legal victories in the Supreme Court are not the only way of evaluating the success of the Constitution’s “fundamental rights” guarantees for Indian citizens. Sometimes, legal loss is but a step in building consensus towards a more long lasting social victory (as seen in the context of the s. 377 litigation in recent times). But if we trawl through the Supreme Court’s case archives, as De has done, it is quite possible that we will find many more such instances that substantiate this claim. At other times, the process of litigation helps to halt the governmental juggernaut, which gives the litigants enough time to transition to occupations or beliefs that do not fall afoul of the law (as seen in the four kinds of cases that De describes, as well as the property rights jurisprudence of the Court with which I am more familiar).

Now, I air my (mild) disagreements on some of these themes. First, the claim that the Supreme Court also protected rights of the “proletariat”, even as it protected the rights of the “propertariat” adds laudable complexity to the oft-repeated unidimensional view of the Court pre-emergency. It does not however, refute the deeply entrenched claim that the Court did stand for the “propertariat”. After all, the Nehruvian state’s painting of the Court as reactionary and anti poor was not merely because it lost the property cases that it did (though these are much fewer than what seems to be embedded in the public imagination), but its claim that these losses were fundamental barriers in reshaping the economy in a way that was essential to ensure economic development and social redistribution, which would alleviate poverty and misery. Therefore, in order to fully rebut the claim that the Court was reactionary and protective of elites, we cannot escape engagement with the court’s property rights jurisprudence.

Second, it is clear that there are many categories of elites. As Pierre Bourdieu has noted, there are many types of capital that help create social class: financial capital, social capital, cultural capital and symbolic capital. De’s “ordinary litigants” were not landowners. But insofar as these litigants were government officials (in a recent op-ed, Surjit S Bhalla has noted that India’s “jobs crisis” is in large part created by a demand for government jobs, thus providing some indication of the extent to which a government job confers economic and social capital to ordinary Indians today, even in a much more booming private market economy than that which existed during the period De interrogates), or owned businesses or participated in trades, or were taxpayers within a largely urban setting or “bazaar economy” as De calls it, at a time, when more than 70% of the Indian population lived in villages and the average life expectancy of all Indians was a mere 41 years, some of De’s “ordinary litigants” can be considered lesser elites. Of the four groups of litigants, Parsis though a religious minority, we know are, and have been a socially and economically empowered community in India, and the Marwaris, from the dominant Hindu community are also a socially and economically influential community in India. De’s claims are much more persuasive vis-a-vis the women sex workers, who both because of their gender and the “immoral” nature of their work, and the Muslim Qureshi community, who because of their “religious” minority status, and because of their involvement in a profession that was antithetical to the most sacred belief of the majority Hindu community regarding “cow worship”, can be considered truly marginalised.

De’s second argument, that the Nehruvian state was not anti-market but rather sought to reshape the market in accordance with certain social and economic goals, and used the law to achieve its goals of reshaping market relations, is also convincing. But, in my view,De could have engaged with this claim not just historically, but also theoretically. The claim in political science literature that the Nehruvian state was anti-market, stems from a pre- legal realist understanding of state market relations, according to which, the state and market are two separate domains, and it is possible for the state to choose whether to allow market forces to operate in freedom or to impose a statist vision on the economy. De’s response to this claim, insofar as he demonstrates that the Nehruvian state was not statist but actively involved in reshaping the market economy, though substantively robust appears pre- legal realist. Legal realist scholarship by scholars like Holmes, Hohfeld, Llewellyn, and Hale and further developed by Critical Legal Scholars, like Duncan Kennedy, Roberto Unger, and Morton Horwitz, has demonstrated that even in the most “free market” economy of the world, namely the United States, the state and the market are not two separate domains, but rather the state always creates the market economy through law. The reverse is not just a historically, but a theoretically untenable proposition.  De engages with the post realist literature in his description of Hendrik Hartog’s understanding that “law and legal practices were intrinsic” to the lives of ordinary Americans, noting that this understanding is missing from literature about India. Likewise, it would have been illuminating for us, if De had engaged with the post realist literature on state market relations.

But these are minor quibbles with De’s otherwise masterly account of how the Constitution empowered ordinary Indians to effectuate the promise of the Republic where all citizens, irrespective of caste, class, gender, or social and economic status, could enjoy the basic rights of life, liberty, equality, and property. Rohit De’s book is a seminal contribution to the recent body of scholarship that has sought to interrogate many conventional narratives about the Indian Constitution, and its self-appointed highest guardian, the Indian Supreme Court. It deserves to be read once for the sheer brilliance of the narrative, and its peek into the “everyday life of the law in the Indian Republic”, and reread many times for its discursive navigation across scholarly literatures, ranging from history, politics, sociology, anthropology and the law, and his insights that take our understanding further in all of those fields.

ICLP Book Discussion: Rohit De’s “A People’s Constitution” – III: Husna Bai, Sex Work, and the Constitution

(As part of our blog round-table book discussion, this is the second of the substantive responses to Rohit De’s A People’s Constitution, by Prof. Ratna Kapur.)

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Prof. Ratna Kapur

Rohit De’s very compelling archival and historical excavation situates the Constitution and the making of Indian constitutional law in the everyday lives of the people. But not just any people. It is driven largely by those who were left out, excluded or subordinated, both historically as well as from the postcolonial liberal democratic political space. De describes this process as “constitutionalism from the margins.” These are the subalterns whose rights claims produced a constitutional consciousness.

The `marginal’ citizens that have led this process include the sex worker. De’s chapter entitled “The Case of the Honest Prostitute: Sex, Work, and Freedom in the Indian Constitution” provides a refreshing insight into rights struggles that have informed the legal regulation of sex work and how these continue to resonate in contemporary discussions on sex work, anti-trafficking and sexual morality.

The chapter provides a close reading of the case of Husna Bai, who, in 1958, filed a writ petition in the Allahabad High Court under Article 226 of the Constitution challenging the constitutional validity of the Suppression of Immoral Traffic in Women and Girls Act1956 (SITA). Her central claim was that as a sex worker and citizen of India, her right to practice her profession as a prostitute under Article 19 of the Constitution was being infringed by the new anti-trafficking regulatory regime established by SITA.  She wanted the Act to be declared ultra vires as it struck at the means of her livelihood, and “frustrated the purpose of the welfare state established by the Constitution in the country” (p. 169). The case received extensive media attention and was supported by prostitute organisations throughout the country, triggering similar cases in other high courts, including Delhi and Bombay.

De’s narrative draws attention to three important features of Husna Bai’s intervention.  The first is how it led to a convergence of opinion amongst female members of the Constituent Assembly and parliamentarians as well as social workers who had driven the legal campaign for women’s equality rights under Articles 14 and 15 of the Constitution to outlaw what they described as “immoral traffic”, and the emancipation of the prostitute. The campaign to have human trafficking and forced labour included under Article 23 of the new Constitution was led by one of India’s first female lawyers and a member of the Constituent Assembly, Durgabai Deshmukh and supported by Hansa Mehta, President of the All India Women’s Conference (AIWC).  Deshmukh and her female compatriots were aghast that a petition could be filed for upholding the “right to carry on prostitution or the business of brothel keeping” (p. 170), which they determined would undermine the national progressive agenda in favour of women’s rights to equality and freedom. Article 6 of the AIWC’s “Charter of Rights of and Duties for Indian Women”, included the role of women in maintaining moral standards. Within this framing there was no recognition of the subjectivity of Husna Bai, either as a sex worker, or as a Muslim and a citizen of India in her claim for rights. Instead she was viewed as a victim and an abject subject, to be rescued, rehabilitated and incorporated into the dominant moral order. Her future in postcolonial India would be scripted by those who viewed themselves as the keepers and preservers of Indian womanhood and the moral dignity of the nation. The position of Deshmukh and other liberal female parliamentarians presaged the anti-sex trafficking and abolitionist position of Indian feminists that has been dominant in the contemporary moment. The construction of the identity of the nation as a sexually conservative, heteronormative, marital and reproductive arrangement was to constitute the normative scaffolding within which women’s subjectivity was to be recognized and women’s equality rights conferred in postcolonial India.

Second, Husna Bai is the first case to foreground the agency and presence of the female sexual subaltern in law. The prostitute had been constructed largely as a contaminant and a source of disease in colonial law. This construction erased the plural and varied categories of female sexual subjects in the Indian context that included temple dancers, concubines, sex workers, dancing girls, classical musicians and others.  Husna Bai’s intervention signalled the arrival of the female sexual subject, who challenged the vast bureaucratic and welfare apparatus established under SITA to manage and regulate the prostitute all without her consultation or participation. This exercise of governmentality was designed to ensure the female citizen’s compliance with the emerging conservative norms of Indian womanhood through which the identity of the Indian nation came to be established. Vast powers were conferred on local magistrates as well as the police to manage this `rogue’ subject into normative compliance or be evicted from the public arena and sequestered into protective homes and shelters that rendered her completely invisible and non-existent.

Husna Bai’s challenge, filed almost immediately after the promulgation of SITA, attested to her knowledge of its implications on a range of her fundamental rights.  It also triggered the mobilisation of sex workers in the form of both protests as well as similar legal challenges against the encroachment of the new legislation on their rights. In this struggle, women’s rights advocates were directly pitted against the rights of the women affected by the new law. While sex workers had managed to navigate their lives around earlier laws through techniques such as bribes, claiming to be married (pp.182-183), labelling themselves as dancing girls or singers to avoid prosecution as `public prostitutes’, they continued to be subjected to intense legal and moral scrutiny. Husna Bai chose not to continue with these methods, which denied her status as a prostitute. Instead she opted to fully confront the repressive nature of the laws as well as the categorisation of sex workers as immoral, criminals, or deviants.  In claiming the right to practice her trade and profession on behalf of her entire class of workers, Bai presented herself as a “labouring citizen claiming economic rights” (p.189) as well as a breadwinner for her family.  The implications of such a bold position were both legal and normative. Not only did Bai insert herself as a legitimate citizen entitled to rights claims, she also disrupted the victim/contaminant rhetoric in which the sex worker’s subjectivity had been embedded in law.

The third implication of Bai’s intervention involves the court’s response to her claims and its legacy for the female sexual subaltern as well as feminist politics in the postcolonial present. Husna Bai’s petition was ultimately dismissed but not before the court examined her substantive arguments. Justice Sahai of the Allahabad High Court was of the view that prostitution could be recognized as a trade under Article 19(1)(g), and that restrictions which totally prevented a citizen from carrying out her trade would be unreasonable and void. The fact that the act criminalised `living off the earnings of a prostitute’ was found by Justice Sahai to be unreasonable, given that the trade was usually carried on in the home of families living together, and where household expenses were also shared. Bai further challenged the provision permitting a magistrate to remove a woman from his jurisdiction if the court received information that she was a prostitute. She alleged that the provision impinged her right to mobility, violated her right to equality insofar as the prostitute was treated differently from all other women and this was an unreasonable classification, and infringed her right to freely practice her trade under Article 19(6) (pp.198-199). Justice Sahai supported Bai’s objections. He was of the view that the conferring of unfettered power on a magistrate to remove a woman from his or her jurisdiction for all time, was not only arbitrary, but only served to push her into another locality, and did nothing to liberate her from the trade. In the end, while Justice Sahai accepted the merits of Husna Bai’s challenge, he declined to entertain her petition because her specific rights had not as yet been violated, and hence the petition was premature.

In 1964 the Supreme Court upheld the constitutional validity of the various provisions of the SITA that were the subject of the legal challenges brought by Husna Bai and others after her. In the State of Uttar Pradesh v Kaushalya Devi, Chief Justice Koka Subbarao not only upheld the classification of the prostitute as a separate category as reasonable, but also held that the power conferred on magistrates to remove her from the jurisdiction depended on the “values of life in a society… and the degree and urgency of the evil sought to be controlled” (p. 208). The case sought to push the sexual subaltern back into a normative box.  But De’s inclusion of Husna Bai’s case is not located within the logic of victory or defeat. It is to demonstrate the ways in which the subaltern could perform her rights under the new Constitution as an entitled citizen, challenging the dominant myth that the Constitution was a judicially driven endeavour. Bai’s case did not die with the dismissal of her petition. Justice Sahai’s reasoning has become a peg on which the sexual subaltern has fastened her subsequent rights claims. The legacy of Husna Bai thrives in the undercurrents of subsequent challenges, especially in contemporary trans rights and LGBT rights advocacy.

De’s foregrounding of Husna Bai’s petition is a crucial intervention in the debates on sex work and trafficking, which have moved rapidly to the top of feminist national and global agendas in the contemporary moment. The narrative he pursues through Bai’s case speaks to the dissonance and disruption that the female sexual subaltern brings to the legal arena, and to the neat and tidy prescriptions on how to be a proper/good Indian woman. And as De points out, the narrative also challenges the position of those feminist scholars who view the law as inherently patriarchal and incapable of accommodating the claims of women such as Husna Bai. De demonstrates how Husna Bai’s petition produced alternative understandings of female subjectivity in the legal arena that stood in direct contrast to those being promoted by (bourgeoisie) women’s rights advocates and female parliamentarians in the aftermath of freedom. The case not only triggered a series of rights claims and litigation by sex workers, it has become a part of the genealogy of sexual subaltern subjectivity that is echoed today in the rights advocacy of groups such as Calcutta’s Durbar Mahila Samanway Committee (DMSC). The case exemplifies how sex workers have talked back to middle-class women’s groups in the language of rights (p. 210) and continue to do so.

De’s excavation of the historical narrative is a vital contribution to the archive on the female sexual subaltern’s presence in Indian constitutional legal discourse. It complicates equality rights claims by highlighting the distinction between those women who were pre-selected (or self-selected) as entitled to equality rights in the nationalist and postcolonial liberal democratic order, and those subalterns who were excluded and compelled to battle through the courts for legibility through rights claims in the newly accorded space provided by the Constitution. This contribution pushes back against the often patronising and protectionist stand of nationalists as well as women’s rights groups who usurped the subaltern voice. Partnerships or alliances between conservative religious groups, progressive-left, centre- liberal, progressive secular feminist groups as well as sex work abolitionists around issues of sex work and anti-trafficking have become commonplace in the global politics of sex and gender.  De’s foregrounding of the subaltern voice not only signals the presence of the “resistive subject” in Constitutional rights making and adjudication, it presents a history of how this voice was formative in the emerging politics of women’s Constitutional rights discourse in the aftermath of independence. It provides a crucial archive for marginalised women and sexual subalterns to draw upon in contemporary constitutional rights struggles.

(Ratna Kapur is Professor of Law , Queen Mary University of London, and Distinguished Visiting Professor, Symbiosis School of Law.)