Category Archives: Post-colonialism

The National Tax Tribunals Judgment: Two Interesting Constitutional Issues

Last week, in a judgment that caused quite a stir, the Supreme Court held the National Tax Tribunal Act (and, consequently, the National Tax Tribunal, a centralised adjudicatory for the purpose of deciding and harmonising substantive questions of tax law) to be unconstitutional. I have written a detailed analysis of the judgment elsewhere; in brief, the Court held that the NTT Act transferred the jurisdiction of the High Courts to the Tax Tribunal without ensuring that the Tribunal had sufficient trappings of a Court (e.g., independence and qualifications of its judges etc.) Consequently, it fell foul of the L. Chandra Kumar judgment, and the principle of separation of powers (which the Court rather mysteriously treated as a “constitutional convention”). In a pithy concurring opinion, which is well worth a read, Nariman J. held that it was impermissible to remove the judicial power of deciding substantial questions of law from the High Court.

In this post, I want to focus on two issues thrown up by the judgment, which have been discussed before on this blog, albeit mainly from a theoretical perspective. In its judgment, the Supreme Court relied extensively on the 1975 Privy Council case of Hinds vs The QueenHinds was an appeal from the Court of Appeals of Jamaica. The Jamaican Parliament had passed the “Gun Court Act”, which set up a parallel court system to try certain firearm-related offences. One of the courts it set up was vested with the jurisdiction and powers otherwise enjoyed by the higher judiciary, but its officials possessed neither the independence, and nor the qualifications, that were also enjoyed by the higher judiciary under the Jamaican Constitution. The Privy Council found the act to be unconstitutional, since it violated the principle of the separation of powers between executive and judiciary, which – it held – was a “necessary implication” flowing from the structure of post-colonial, commonwealth “Westminster Constitutions”; it had done so, specifically, by transferring the jurisdiction of the senior judiciary to a parallel court, without guaranteeing the judicial independence of the officers of that court through the rules of tenure, appointment and retirement that applied to regular, senior judges.

In its NTT judgment, the Supreme Court quoted extensively from Hinds. In particular, consider this quotation, which comes after the Privy Council referred to Canadian, Australian and other commonwealth Constitutions (notably, not the Indian):

“All of them [Constitutions] were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive, and judicial power as it had been developed in the unwritten Constitution of the United Kingdom. As to their subject matter, the peoples for whom these new Constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new Constitutions, particularly in the case of unitary states, were evolutionary, not revolutionary. They provided for the continuity of government through successor institutions, legislative, executive and judicial, of which members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.”

Previously on this blog, I’d drawn a distinction between two types of constitutional provisions: conservative and transformative. Most Constitutions are framed at a point of a decisive break with the past, with its institutions and its values, and certain aspects of a Constitution reflect the “transformation” from one set of values and institutions to another; but the past is never a wholly foreign country, and many institutions and structures not only survive revolutionary moments, but are actually entrenched and strengthened in a Constitution, through its “conservative” provisions. A good – albeit schematic – example is that of the American Constitution: its Bill of Rights was (largely) conservative, seeking to guarantee to the American citizens the ancient and deeply-rooted common law rights (e.g., to a jury trial, against unreasonable searches and seizures etc.) enjoyed by British subjects. On the other hand, the Constitution proper was transformative, replacing British monarchy with a system of representative, republican government, exercised through three separate wings of State.

Whether a particular constitutional provision is conservative or transformative, and to what extent it is transformative can have profound implications for constitutional interpretation. For instance, it is sometimes argued that the American Nineteenth Amendment, which guaranteed women the right to vote, transformed not only their voting status, but the entire legal and political framework, based upon the inferior political and legal status of women, that underlay and justified the denial of their right to vote until that moment. Consequently, the Nineteenth Amendment is used by scholars to ground a jurisprudence of sex-equality and non-discrimination within the American Constitution.

Earlier, in the context of India, I’d tried to argue that the transformative nature of Article 15 justified Naz Foundation (Delhi HC’s) reading of “sexual orientation” into “sex”: in providing a universal guarantee of non-discrimination on a set of grounds that were traditionally the sites of social oppression, the Constitution was signaling a shift from a society in which moral membership in society was contingent upon certain unchangeable aspects of one’s personality (race, caste, sex, place of birth, religion) to one in which ever individual was guaranteed equal moral membership, regardless of those unchangeable aspects (and sexual orientation was one such).

In Madras Bar Association, the Supreme Court applies this interpretive technique, by holding that the Constitution’s structural provisions, which set up the institutions and modes of government, are conservative: they entrench the “Westminster model” that was in practice in colonial India, one of whose features was the separation of powers and concomitant independence of the judiciary, guaranteed through appointment processes and security of tenure. Notice that this interpretive technique is based, ultimately, on a historical claim: whether this “Westminster model” was actually made part of our Constitution and, if so, to what extent, needs to be deciphered not merely from the constitutional text, but from a detailed investigation into its history. Unfortunately, the Supreme Court does nothing of the sort: it glibly assumes that the Westminster Model is the model of our Constitution, and decides the case accordingly. This is problematic because the Constitution was, after all, framed in a post-colonial moment, and it requires much argument to demonstrate what set of structures and institutions the framers simply wished to see carry on unchanged into the new republic; however, the use of the analysis itself is promising, and bodes well for the future.

The other paragraph from Hinds that the Court quoted was:

“Because of all this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in a new constitution of a governmental structure which makes provisions for a Legislature, an Executive and a Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government… [and] what is implicit in the very structure of a Constitution on the Westminster Model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the Judicature, even though this is not expressly stated in the Constitution.

Previously on this blog – also in the context of Naz Foundation – we had discussed constitutional structure as one of the bases for interpretation. A structural analysis derives constitutional obligations or principles not from a textual reading of individual or aggregated provisions, but – as the American jurist Charles Black explained – from the “structure and relations… created by the text… and the inferences drawn from them.” Or, to put it in more linguistic terms, there are things that a Constitution says, and there are things that it does not say, but which, when it is taken as a whole, it necessarily implies.

In the Hinds case, much of the argument was historical: separation of powers and independence of the judiciary simply was a basic feature of Westminster governance. But, as we saw in the excerpts, the Privy Council speaks of the “structure” of the Constitution on the Westminster model, and uses the term “necessary implications”. The structural argument is quite straightforward: Constitutions are the fundamental documents creating and detailing the division of powers among the governing institutions in society. A deliberate and intentional division into three separate wings, with specific duties attached to each wing, presupposes that (in the absence of clear contrary evidence), the Constitution requires that the domains that it has marked out for each of the wings be protected from encroachment by the others. Thus, separation of powers and the independence of the judiciary simply come out as structural corollaries of the Westminster-type Constitution.

Something along these lines was the reasoning of the Privy Council in Hinds. Unfortunately, the Supreme Court walked down a very different path: it held that separation and independence were constitutional “conventions”, and accordingly, had to be upheld. This is unfortunate, because of course the meaning of convention is, precisely, that which is not legally enforceable. Thus, the Court’s decision is deeply problematic on this point.

Notwithstanding that, however, these two issues remain fascinating for the debate over constitutional interpretation. The conservative/transformative model is perhaps truest to Indian history, and can serve as an interpretive guide to a number of provisions; and, constitutional provisions flowing necessarily from the structure of the Constitution can have as much legal force as the text itself. The judgment in Madras Bar Association opens the gates for a further decision to engage with and clarify these interpretive points; whether future courts will accept the invitation is something that remains to be seen.


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Filed under Colonial Statutes, Constitutional interpretation, Post-colonialism, Structural analysis

Exclusionary Covenants and the Constitution – IV: Article 15(2), IMA v. UoI, and the Constitutional Case against Racially/Religiously Restrictive Covenants

To sum up what we have discussed so far: the correctness of Zoroastrian Cooperative rests upon Article 19(1)(c) [freedom of association] read with Article 29 [rights of groups to preserve their culture], and is therefore grounded in its own set of specific facts. It does not serve as precedent for the legality and enforceability of restrictive covenants qua contracts, more generally. On the question of enforceability, I have argued that the Shelley v. Kraemer rule that prohibits the judiciary, as an organ of the State, from enforcing restrictive covenants and thus breaching fundamental rights, makes eminent constitutional sense, and ought to be followed. Beyond that, it is an open question whether public policy, flowing from our Constitutional commitment to non-discrimination more generally (in light of the judgments in Brojo Nath Ganguly and Delhi Transport Corporation) would void restrictive covenants by virtue of S. 23 of the Contract Act.

In this post, I will argue that Article 15(2) of the Constitution, as interpreted in IMA v. Union of India, provides a constitutional reason for holding racially/religiously restrictive covenants void.

Article 15(2) states, in relevant part:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to… access to shops, public restaurants, hotels and palaces of public entertainment...”

In IMA v. Union of India, the question was whether a private, non-minority higher educational institution that admits students only on the basis of their scores in an entrance test is in violation of Article 15(2). The Court held that it was. Of particular interest, in the long, rambling 160-page judgment, is the following: the Court invoked the applicability of Article 15(2) by holding an educational institution to come within the definition of “shops”, under Article 15(2). Quoting Ambedkar, in the Constituent Assembly Debates, the Court observed:

“To define the word `shop’ in the most generic term one can think of is to state that `shop’ is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service. …. Certainly it will include anybody who offers his services. I am using it in a generic sense. I should like to point out therefore that the word `shop’ used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to.” (Para 113)

In other words, the Court rejects the standard uses of the word “shop” – that is, a store, “a building or room where goods are stored“, “a building stocked with merchandise for sale“, “a small retail establishment or a department in a large one offering a specified line of goods or services” – in favour of an extremely abstract, rarefied, “generic” usage, to shoehorn educational institutions into the definition. A shop is any place where an abstract seller x offers an abstract thing y to an abstract buyer z. Or, in other words, a “shop” is merely a synecdoche for the idea of the impersonal, abstract market of the modern liberal-capitalist economy. This is the only way that the Court succeeds in getting educational institutions into the ambit of 15(2). But note that, once the Court does so, obviously, the reach of “shop” isn’t limited to educational institutions. If “shop” merely embodies the abstract market, then the reach of 15(2) extends to private economic market transactions generally, and not just the business of education. And covenants for sale or lease of property are examples par excellence of such transactions. The logic of IMA v. UoI, therefore, inescapably brings such covenants under Article 15(2), that applies horizontally. If, therefore, these covenants discriminate against persons on prohibited grounds – race, religion, sex etc. – they are unconstitutional.

Note that this conclusion ins’t as radical as it sounds – it doesn’t cover cases like Zoroastrian Co-Op, for instance, but is limited to economic transactions (which, in any event, in accordance with classical economic theory from the time of Adam Smith, are supposed to take place at arm’s length).

Is there any warrant for the Court’s reading of Article 15(2), a reading that sounds absurd on the face of it? I will try to argue that there is. To start with, let us consider the most basic objection: the text of Article 15(2). If the framers wanted to apply Article 15(2) to all market transactions, why didn’t they simply say so? Why did they use concrete terms – and not just one concrete term, but shops, restaurants, hotels – to express the rarefied, abstract concept of the market?

My answer shall consist of two parts. The first part will be purely defensive, showing that the text doesn’t present an insurmountable barrier to this interpretation. To do so, I will take – and tweak – an example developed by Professor Jed Rubenfeld in Revolution by Judiciary.

Professor Rubenfeld argues that based on their history, generally worded constitutional commitments must be interpreted to apply to certain concrete situations (e.g., “equality” to non-segregetated schools). In his hypothetical, Odette is married to Swann, and cheats on him with his friend Duke. Ashamed, she vows that she will never deceive Swann again. Rubenfeld argues that the context in which this commitment was made implies that not-sleeping-with-someone-else is the paradigmatic case of deception – i.e., no interpretation of “deception” can fail to take into account the central act that led Odette to make this vow. This makes sense, because ultimately, what Odette agonized about was specifically sleeping with Duke in itself, but that in doing so, she betrayed Swann’s trust. This explains why she framed her vow in general terms.

I want to take Rubenfeld’s hypothetical and reverse it. Ashamed and mortified by her act, Odette is asked by a friend, “what did you do last night?“, to which she replies: “I slept with Duke. I’m utterly ashamed. I vow I’ll never do that again.” Now, a few months later, Swann is away, and at a house-warming, Odette finds herself attracted to Marcel. She says to herself, “Well, all I did was vow never to sleep with Duke again. But this is Marcel. So my vow remains unbroken.” Nobody will accept this reasoning. This is because if Odette’s vow is to make any sense, it must be understood as expressing some kind of principle. Odette made her promise because she saw something wrong in what she had done, and the wrongness of the act – sleeping with Duke – lay not in it being Duke, or a man with blue eyes, but her breach of Swann’s trust. Thus, although her vow was framed in specific language, as an immediate response to a situation, its reach was not so. Again, the core idea is that we take Odette’s vow to be grounded in reason – and embodying a principle. And to understand what the principle is, we must study the context and circumstances in which her vow, or commitment, was made.

If, therefore, history shows that there are, indeed, good reasons for treating the concrete word “shop” as embodying the more abstract principle of the market, then the text need not stand in the way of interpreting it that way. And indeed, the history does show it. The meaning of “shops” was debated in the Constituent Assembly on the 29th of November, 1948. Shri Nagappa asked specifically whether “shops” included not just places where goods were bought, but also places where services were contracted for. The debate then turned to a host of private, discriminatory practices, the amelioration of which was the objective of Article 15(2) – as a whole, and not clause-by-independent clause. Indeed, Shibban Lal Saksena objected to the provision precisely on the basis of its far-reaching character, one that would compel Hindus to go against their religious (as well as cattiest) practices involving food. Ambedkar then answered Sri Nagappa in the quotation that the Supreme Court in IMA v. UoI extracted – about “shop” being used in its “generic” sense. Specifically – and this the Supreme Court did not extract – Ambedkar was asked whether “shop” included a doctor and a lawyer’s chambers. His answer: “it will include anybody who offers his services.”

And lastly, when, on 22 November 1949, towards the very end of the drafting process, Ajit Prasad Jain discussed the provision, he did so by grounding it in a long history of discrimination against women, scheduled castes, untouchables and other groups that had blighted Indian society. We can thus see, very clearly, that both the supporters and the opponents of what eventually became Article 15(2) were united in its understanding that the purpose of 15(2) – as expressed through its language – was to reverse this history – a history in which a part of society was systematically excluded from the normal functioning of economic life. Suddenly, IMA v. UoI’s interpretation no longer sounds quite so absurd.

To understand what our framers were getting at, let us deepen our analysis further. Traditionally, it is true that civil liberties – fundamental rights – have been deemed to be exercisable vertically – individuals against the State. But there is a specific historical reason for this: and that is that when bills of rights were first conceptualized (in particular, in the aftermath of the American revolution), they were conceptualized in the context of a distinctly Western idea of sovereignty, of Thomas Hobbes and Jean Bodin: the idea that sovereignty was single, indivisible, and ultimate, and resided at one place in the polity. For Hobbes and Bodin, sovereignty was concentrated in the figure of the sovereign; but through the American and French revolutions, it came to be thought of as residing in the people. The basic idea of the inherent unitary and unified nature of sovereignty, though, remained intact. Thus, when the Americans developed their system of representative republican democracy, through which sovereign power was delegated by the people to their elected representatives, it made sense to draft a bill of rights designed to check the State and only the State, because there – and only there – was where the locus of sovereign power (albeit delegated) resided. (This is a summary of the richly detailed intellectual history, found in Gordon Wood, The Creation of the American Republic).

The work of post-colonial scholars informs us, however, that sovereignty in India was always understood very differently: it was inherently decentralized and had its locus at multiple points, especially in the economic sphere (see, e.g., Sudipta Kaviraj, Trajectories of the Indian State); in addition the works of Guha and other subaltern historians (see, e.g., Dominance without Hegemony) shows us that forms of authority in the marketplace (even during the colonial period) unlike in the West, instead of being governed by the impersonal, vertical market forces of liberal capitalism, continued to be horizontal, person-to-person and tradition based, in continuance of the multiple, decentralized centers of power-and-sovereignty that had characterized the old Indian polity. Indeed, one of the objectives of the nationalist movement was precisely to replace this set of relations with a liberal-capitalist order (see Partha Chatterjee, Nationalist Thought and the Colonial World). Thus, to start with, we can see that there is a much stronger case for supporting the idea of horizontal rights – given the very different workings and understandings of sovereignty in India – than there is in Western constitutions.

Previously, on this blog, we have discussed the idea of the “transformative constitution” – one that seeks to transform, or change, an existing status quo. The Constituent Assembly Debates make it clear that our Constitution was transformative in two ways: it sought to transform not only (in part) the British colonial system, but also the underlying pre-colonial relations based on caste, untouchability and gender oppression. Our sketchy and reductive foray into that history shows us that one of its characteristic features was, precisely, the horizontal exercise of power relations in an exclusionary manner, including in the sphere of economic transactions. The fact that the framers wanted to get rid of this is evident at other places where constitutional rights are horizontal: the abolition of untouchability (which was widely used as a tool of economic oppression) and of bonded labour (another economic weapon). In the face of all this, it makes perfect sense that the framers, through Article 15(2), which is also clearly transformative, were attempting to do away with traditional discriminatory practices that pervaded the private economic realm. Their use of the word “shops” – and Ambedkar’s clarification of its meaning – was one way of doing so, and fulfilling the transformative promise of India’s constitution.

This, then, is the argument: the text of 15(2) is not an insurmountable bar against a broad reading of “shops”. The Constituent Assembly debates support a broad reading. The structure of Part III – horizontal rights pertaining to untouchability and forced labour – support it. And finally, the transformative nature of India’s constitution – with respect to a long history of horizontal discrimination, fighting against which was one of the goals of the national movement – justifies the use of horizontal constitutional rights against discriminatory economic transactions in the private sphere. IMA v. UoI’s interpretation, therefore, is faithful to the structure and philosophy of India’s bill of rights, and ought to be upheld.

The upshot is that racially/religiously restrictive covenants violate Article 15(2). Acts like denying a person a house on the ground of their Muslim religion (for instance, in Bangalore) are violations of the Constitutions, and ought to be treated by the Courts as such.


Filed under Article 15 (general), Constitutional interpretation, Exclusionary/Restrictive Covenants, Horizontal Rights, Non-discrimination, Post-colonialism, Structural analysis, Textualism

Transformative and Conservative Interpretation: Untidy Corollaries

(To Kunal Ambasta, fellow traveler on constitutional roads, fine human being and good friend.) 

In the last post, we explored the possibility of a Constitution serving two distinct purposes – conservative and transformative. Recall that a Constitution can be conservative in that it seeks to preserve, codify and entrench an existing set of values and institutions; or it could be transformative in that it seeks to replace them. We noted that large parts of the American constitution are examples par excellence of conservative provisions, whereas our own Articles 15 (non-discrimination) and 17 (abolition of untouchability) are paradigm cases of transformative provisions.

One enquiry was simplified by the fact that in our model, the American constitution, the conservative/transformative distinction, in large part tracked a more familiar distinction between individual rights and structures of governance. Yet things need not always be that simple (and the American constitution, after its reconstruction amendments granting equal citizenship to blacks, is certainly not that simple). There is no reason why, within the same set of rights, some can be transformative, and some conservative. Here is an example: if Ranjit Udeshi was right in upholding the ban on Lady Chatterley’s Lover (and I do not think it was), its only justification would be that Article 19(2)’s morality clause sought to conserve and codify existing dominant conceptions of “public morality“. Here you have a classic case of transformative and conservative elements blending not just within the same bill of rights, but within the same provision: Article 19(1)(a) is transformative in the sense that it grants citizens the right to free speech that they didn’t have under the Empire or previously; while at the same time, it restricts the scope of that right by entrenching an existing value system into law.

What, then, does this distinction further entail? Here is one suggestion: many of us, when we first enter the labyrinth of constitutional law, choose as our own Ariadne’s ball of thread, a particular interpretive methodology to help us navigate. We then defend our chosen method (or sometimes, combination of methods) against all others by invoking various arguments grounded in democracy, the separation of powers, or just plain common sense. Originalism suffers from the dead hand problem, for instance; “living tree” doctrines, on the other hand, would seem to vest too much power in unelected judges to substitute their own moral preferences for the majority’s; textualism makes a mockery of how language is used by refusing to take into account the rich surrounding context, both within the document and historical; structural analysis is unfaithful to the framers by imposing coherence and unity upon what was actually a patchwork quilt of bargain and compromise; and so on. But if Constitutions can themselves serve at least two very different – indeed, opposite – purposes, then perhaps there is no one correct method – or combination of methods – of interpretation. Perhaps the right way of interpreting a constitutional provision depends upon whether it is conservative or transformative, and to what extent.

Here is one trivial way in which this is true: a transformative provision obviously cannot be interpreted by invoking traditional values. If the point of inserting a free speech clause into the Constitution was transformative in that it meant to ensure that a dominant class would no longer be able to silence opinions that it perceived to be immoral or harmful, then it makes no sense to read 19(2)’s morality clause as “public morality” – because all that does is to replace the British with whatever class whose stated morals the Court decides to count as “public“.

There are also, however, subtler issues at hand. One dominant form of constitutional interpretation, championed by Justice Antonin Scalia at the US Supreme Court, is that of “original meaning” (the term is self-explanatory). Original meaning, I would submit, is a powerful interpretive method when we’re dealing with conservative constitutional provisions: because the objective is to preserve an existing set of values, what words meant at the time the provision was drafted would, indeed, be the best indicator of what content the values themselves had, and were meant to continue to have. On the other hand, originalism is inadequate to deal with transformative provisions, for the following reasons: first, a simple issue of language. While one is trying to transform a set of values, one’s tools to do that remain only words, and words not only carry with them the accumulated baggage of decades, sometimes even centuries, of consistent usage, but are also often implicit carriers of value. So it is quite possible – indeed, even likely – that the full transformative force of a concept will simply fail to be captured by extant patterns of language (“equality” being a classic example). 

Secondly, transformative provisions raise an issue of consistency. Here is an example: the framers wanted to transform a society that discriminated in all sorts of invidious and destructive ways by expressly writing a non-discrimination principle into law; they omitted sexual orientation from that list because they believed, on the basis of extant medical evidence, that homosexuality was a disease. That claim has been comprehensively debunked by medical research. So now, in 2013, what interpretation of Article 15 would be more faithful to the framers’ transformative vision? What interpretation would ensure that the Article 15 remained principled and consistent with itself? Naturally, one that read sexual orientation into Article 15 (as a parallel analogy: suppose the contract law of State X decided to shift from oral contracts to “written and printed contracts”, on the ground that it was easier to prove tangible agreements; does it make any sense to deny contractual protection to one done on microfilm?) . Note, however, that such a problem would never arise if the provision was simply conservative, because there you’re taking a set of values as given, without worrying about whether they are consistent with each other.

And lastly, consider a more speculative argument: a transformative constitutional provision is, among other things, a rebuke to illusions of infallibility; it is an admission that a particular generation got it wrong – wrong either in its identification of values, or in its attempt to entrench that value set against change by future generations; so wrong, in fact, that not just a modification, but a transformation is in order. It would be odd, then, that a provision predicated upon fallibility would arrogate to itself assumptions about its own infallibility. A transformative constitution – or rather, transformative constitutional provisions therefore, by virtue of their character, their origins and their philosophy, both invite and demand a dynamic, responsive and flexible interpretation – not a rigid, static and originalist one.

But even this isn’t the whole story, because as we discussed before, transformative constitutions in colonial contexts present a considerably more complex picture because often, alongside transforming values from the colonial to the post-colonial, they seek to conserve a perceived vision of the pre-colonial, an idea of the nation before it was conquered. At this point, I freely confess that my own grip on what interpretive strategy fits best begins to be cast off its moorings; what I would like to argue definitively, though, is that our interpretive approach to the Indian Constitution (beyond merely the question of whether to invoke traditional values in interpreting it) depends upon a detailed analysis questioning which parts of it are conservative, which parts transformative, and in what way. 

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Filed under Constitutional interpretation, Non-discrimination, Post-colonialism, Sexuality

Infusing Values into a Transformative (and Post-colonial?) Constitution

The past is a foreign country: they do things differently there.” – L.P. Hartley

In his book, Constitutional Fate, Philip Bobbitt lists various “modalities of constitutional argument” – that is, methods of constitutional argument that are compatible with the institution of judicial review. His typology includes the following: textual, historical, doctrinal, prudential and structural arguments; the categories are largely self-explanatory, and we have discussed a few of them before on this blog. But then, Bobbitt adds one final “modality” – ethical argument. Here is how Bobbitt defines the term:

By ethical argument I mean constitutional argument whose force relies on a characterisation of American institutions and the role within them of the American people. It is the character, or ethos, of the American polity that is advanced in ethical argument as the source from which particular decisions derive.” (p. 94)

Bobbitt sees the case of Moore v. City of East Cleveland as an example par excellence of the use of ethical argument in constitutional law. In that case, an Ohio zoning ordinance that limited occupancy of a dwelling unit to members of a “single family” was struck down as a violation of due process clause. Justice Powell wrote:

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition… the tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots… venerable and… deserving of constitutional recognition… conditions of modern society… have not erased the accumulated wisdom of civilisation, gained over the centuries and honoured throughout our history… that supports a larger conception of the family.

Similarly, Bobbitt highlights the case of Meyer v. Nebraskawhere, in striking down a statute that criminalised teaching foreign languages to children below the eighth grade, Justice McReynolds defined “liberty” to include “… those privileges long recognised at common law as essential to the orderly pursuit of happiness by free men.”

Let us pause and consider the language used by the Justices. “Deeply rooted“, “history and tradition“, “accumulated wisdom… over the centuries“, “long recognised“, “at common law…“: these terms bring suggest, above all, the legitimation of values by virtue of their source in folk wisdom, and their enduring validation under principles of stability and continuity. Now, whatever might be the abstract merits of such an approach to determining the right and the good, we must also enquire about their place in constitutional argument; and that, in turn, requires us to to investigate the purposes of Constitutions themselves.

A Constitution, naturally, is something that “constitutes”. Political constitutions “constitute” the basis for the distribution of political power in a polity by setting up governing institutions and structuring their relationships with each other and with the people. But the very idea of “constituting” implies birth: and birth, in this context, can occur in two situations: the creation of something where nothing existed before, or the comprehensive replacement of what used to exist with something entirely new. A brief look at some of the important (written) Constitutions in the modern era proves instructive: consider the American Constitution, the French Declaration of the Rights of Man, and the Indian, South African and Irish Constitutions. All these occurred at the cusp of a historical fissure, at a moment when a decisive break was being made with the past, whether in the case of the violent overthrow of an ancien regime, the (relatively) peaceful transition of power from a colonial government to an independent one, or the end of apartheid.

Yet, it would be a mistake to assume that a decisive break with the past is necessarily a complete break with it. As Will Kymlicka demonstrates eloquently in his book, Multicultural Citizenship, our being embedded and located within an enduring culture, with its set of defined values and traditions, is often an essential precondition for living an autonomous and fulfilling life – and common sense tells us that no break with the past can sweep away everything that came before. To borrow some helpful terminology from John Rawls, let us define a political transformation as a transformation of the basic structure of the political institutions of society; and a comprehensive transformation as a transformation of its moral vision of the good, and its ideas of what it means to live a good life (Rawls makes this distinction in the context of political liberalism and comprehensive liberalism). Our discussion shows that constitutional moments normally presuppose the first kind of transformation, but it is an open question whether and to what extent they presuppose the second.

I now introduce a second typology: let us label those aspects of a Constitution that seek to preserve parts of the existing order as “conservative“; and those that it seeks to replace as “transformative“. I suggest that the impossibility of absolute change implies that every Constitution must have both conservative and transformative elements; what combination it will have them in is a contingent matter, dependent upon history and circumstance.

Consider, for instance, the American Constitution: the entire raison d’etre of the American War of Independence was that the American colonists felt that the King was denying to them the traditional rights and liberties enjoyed under common law by Englishmen. The Declaration of Independence, for instance, makes explicit reference to “the rights of the people“; the eighth amendment to the American Constitution borrows its language from the 1689 English Bill of Rights; Article IV makes reference to the “privileges and immunities” enjoyed by Citizens; and the Ninth Amendment holds that the enumeration of express rights does not mean the denial of others “retained by the people“. Thus, while the American constitution is transformative in its establishment of a new system of governance based on an idea of individual suffrage and functional separation of powers (See Articles I – III), its Bill of Rights is conservative in the sense that it seeks to write into law the “traditional” liberties enjoyed by the People, and seek recourse to established values in interpreting the scope of those liberties. We can now understand why it made eminently good sense for Justices Powell and McReynolds to engage in the kind of argument they did (and see also District of Columbia Heller (Second Amendment) and Crawford Washington (Sixth Amendment).

But if the American Constitution sought to entrench existing societal values of a largely homogenous culture against governmental invasion, the Indian experience is radically difference. Our constitution was framed at the moment when two centuries of colonial rule were coming to an end, when the break was being made not only with an alien ruler, but also, in some sense, with an alien ethos imposed upon society. Our bill of rights, therefore, isn’t conservative in the sense that the American bill of rights is, quite simply because there was nothing to conserve

The case of post-colonial Constitutions raises a more complex issue, however, because as we well know, nationalist independent movements (and ours is no exception) are substantially motivated by a narrative that seeks to regain a pre-colonial past, whether real or imagined. Now, if the objective of an independence movement is a call to return to the values that animated such a past, then this is one sense in which a potential post-independence Constitution could be conservative – seeking to conserve not its colonial heritage, but the heritage that existed before colonisation; i.e., a return to the past, but a discontinuous past. The classic example of this approach is found in South Africa. In v. Makwanyane, the South African Constitutional Court held the death penalty to be inconsistent with the new Constitution, and referred, in particular, to the constitutional value of “ubuntu“; ubuntu has been defined as an “ancient African worldview” that approximates what we would understand as “solidarity”. The Constitutional Court’s invocation of it, therefore, is precisely the call to the past and a reference to societal values that we have found, in a different avatar, in the American.

Now the case of India, I submit, is even more difficult, because not only does our Constitution mark a decisive repudiation of the colonial past by establishing a parliamentary democracy, but many clauses in our Bill of Rights also seek to abolish especially pernicious and invidious aspects of our society that were distinctly non-British (Ambedkar was particularly expressive on this point). See, for instance, restricting entry to temples and other public places (Article 15(2)), untouchability (Article 17) and bonded labour (Article 23), to name just three.

What, then, does our Constitution seek to conserve, and what does it seek to transform? Let us begin by noting that the question is vitally important, because Bobbitt’s ethical argumentation has found its way into some of the Supreme Court’s important opinions. We saw, earlier on this blog, how in Rangarajan the Supreme Court made express reference to enduring “Indian” values in the context of film-censorship; and how, in Ranjit Udeshi, it read Article 19(2)’s morality exception to free speech as referring to “public morality, and accordingly upheld a ban of Lady Chatterley’s Lover. And we have seen how the same arguments relying upon “Indian culture” and “Indian values” have been made before the High Court – and then the Supreme Court – in the ongoing Naz Foundation litigation. I do not argue here that the Court’s conclusions were wrong: I argue only that before invoking the values of an eternal, unchanging India (and entering the minefield of defining an “India” and “its” values in the teeth of near-unanimous historical skepticism), the Court needs to establish the legitimacy of that form of argument. It needs to show that a Constitution which is expressly transformative in its abolition of “Indian” values such as untouchability and religious discrimination (imagine a law that stifles the free speech of untouchables, which the government then attempts to justify on 19(2) grounds of public morality!) is nonetheless conservative where values coming from an identical source pertain to homosexuality or pornography. And that, in turn, requires a detailed excursion into the history of our independence movement, and more importantly, into the philosophy (or philosophies) of the Constituent Assembly Debates. In other words, we cannot have a satisfactory interpretive theory of our Constitution without understanding its conservative and transformative aspects, and that in turn requires an understanding of history and of the political theory of the Debates. As Lord Denning recognised long ago, good constitutional lawyers must also be good historians and good political philosophers!

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Filed under Constitutional interpretation, Decency and Morality, Free Speech, Post-colonialism