The Tribunals Judgment – I: A Course Correction on the Money Bill

Tags

aadhaar, money bill, speaker, structural analysis

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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Yesterday, a Constitution Bench of the Supreme Court delivered an important judgment concerning the constitutional validity of the Finance Act of 2017. Briefly, through the Finance Act, Parliament had merged a number of Tribunals, and delegated to the government the task of framing rules for their functioning. The Finance Act had been passed as a money bill, which barred the Rajya Sabha from amending it. There were, therefore, three issues before the Court: (i) whether the Speaker of the Lok Sabha had correctly certified the Finance Act as a money bill; (ii) whether Section 184 of the Finance Act – the delegation provision – was constitutional, and if it was, whether the rules the government had framed for the Tribunals were constitutional; and (iii) miscellaneous issues around the functioning of Tribunals in the country. The last issue – strictly – is one of legal policy, and I will not discuss it here. This post will discuss the debate around the money bill, and the next post will discuss Section 184.

The debate around the money bill was framed in the background of the Supreme Court’s Aadhaar Judgment, of September 26, 2018. Recall that in the Aadhaar Case, the Speaker’s certification of the Aadhaar Act as a money bill was under challenge. There were a number of issues that the Court had to consider: first, whether the Speaker’s decision was subject to judicial review; secondly, if it was, how was the Court to interpret Article 110 of the Constitution, that set out the conditions for what constitutes a money bill?; and thirdly, was the Aadhaar Act correctly certified as a money bill?

As Suhrith Parthasarathy pointed out repeatedly in the aftermath of the Aadhaar Judgment, the majority decision returned a confused set of findings on this issue. The primary reason for this was that it mixed up the order of the questions. Instead of first deciding whether the Speaker’s certification was subject to judicial review, it went ahead and reviewed the law anyway – thus implying that it was – but later, went on to say that it wasn’t answering the question of review. On the substantive issue, it first struck down a provision of the Aadhaar Act (Section 57) that clearly couldn’t be traced back to Article 110 – and then held that the rest of the Act passed scrutiny as a money bill. The consequence of this was that it failed to provide clear standards for how the Court should interpret Article 110.

Importantly, the majority judgment in The Tribunals Case – authored by the Chief Justice – points this out clearly and unambiguously. In paragraph 122 it notes that:

Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court’s satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches.

Having taken this view, the Chief Justice then correctly refers the question to a larger bench for resolution. In doing so, however, he also makes it clear that on the point of judicial review, the law is now settled. By examining the Aadhaar Act on merits, it was a necessary implication that the question of the Speaker’s certification is subject to judicial review (and this in line with previous judgments, such as Raja Ram Pal); and contrary judgments, such as Siddiqui, now stand expressly overruled. The consequence, then, is this: the speaker’s certification of money bills is now subject to judicial review. The standards that a Court must apply – balancing respect for the Speaker’s prerogative against the importance of bicameralism and the Upper House – will be decided by a larger bench.

In this context, Chandrachud J.’s concurring opinion repays careful study. Recall that Chandrachud J. had dissented in the Aadhaar Case, including on the point of money bill. Here, he takes the argument further. After setting out the history and origins of money bills in British parliamentary practice, and noting that as a matter of constitutional text and structure, the “finality” of the Speaker’s decision doesn’t necessarily exclude judicial review, Chandrachud J. comes to the heart of the case: the issue of bicameralism. Put very simply, “bicameralism” refers to the existence of two legislative chambers, where – depending upon the circumstances – the participation and/or concurrence of both  chambers is required to pass laws. In the Indian context, “bicameralism” is a specific, structural check upon majoritarianism, as well as a guarantee of states’ representation in the federal scheme. The Rajya Sabha exists both to articulate the interests of the states in Parliament, as well as act as a check upon the Lok Sabha. Thus, as Chandrachud J. notes:

The Rajya Sabha reflects the pluralism of the nation and ensures a balance of power. It is an indispensable constitutive unit of the federal backbone of the Constitution. Potential differences between the two houses of the Parliament cannot be resolved by simply ignoring the Rajya Sabha. In a federal polity such as ours, the efficacy of a constitutional body created to subserve the purpose of a deliberate dialogue, cannot be defeated by immunising from judicial review the decision of the Speaker to certify a Bill as a Money Bill. (paragraph 65)

What Chandrachud J. is doing here is what the legendary American constitutional scholar, Charles Black, called “structural interpretation“: constitutional interpretation that flows from the structures and relationships between various constitutional provisions. Here, Chandrachud J. uses the importance of bicameralism as providing the interpretive framework within which to examine the issue of the money bill; or, in other words, any interpretation of Article 110 must be one that advances and protects bicameralism, rather than diluting or eroding it.

This interpretive framework comes into play when Chandrachud J. examines the merits of the dispute. He notes that the inclusion of a non-fiscal provision matter in a money bill is permissible only if it is “incidental” to a matter specified in Article 110. Or, in other words, the legislation must essentially relate to one of the clauses under Article 110. The Finance Act – to the extent that it dealt with the restructuring and composition of Tribunals – clearly did not fall within this category. Therefore:

We are unimpressed with the submissions of the learned Attorney General that since salaries are payable out of the Consolidated Fund, Part XIV of the Finance Act bears a nexus with sub-clauses (c) and (d) of Article 110(1) and that the other provisions are merely incidental. That the amendment has a bearing on the financial burden on the Consolidated Fund of India cannot be the sole basis of brining the amendment within the purview of Article 110(1). On a close analysis of the provisions, it is evident that what is claimed to be incidental has swallowed up the entire legislative exercise. The provisions of Part XIV of the Finance Act 2017 canvass a range of amendments which include qualifications and process for appointment terms of office and terms and conditions of service including salaries, allowances, resignation and removal which cannot be reduced to only a question of the financial burden on the Consolidated Fund of India. The effect of Part XIV is to amend and supersede the provisions contained in the parent enactments governing all aspects of the appointment and terms of service of the adjudicatory personnel of the tribunals specified in the Eighth and Ninth Schedules. This exercise cannot be construed as a legitimate recourse to the power of enacting a Money Bill. (paragraph 77)

It is crucial to note that this analysis on merits flows from the structural analysis discussed above. In paragraph 86, Chandrachud J. goes on to observe:

… the certification of a Bill as a Money Bill and the invocation of the provisions of Article 110 is an exception which has been carved out by the Constitution to the constitutional requirements accompanying the passage of ordinary legislation. In passing the Bill as a Money Bill, the immediate impact is to denude the Rajya Sabha of the legislative role which is assigned to it in the passage of legislation.

On this basis, he finds that the Speaker’s certification was incorrect, and sets it aside; the rest of the Act, however, is saved on principle of severability.

It is important to note that this is not the first occasion in recent times that structural analysis has played a role in the Court’s judgments. It was also in play in the NCT of Delhi v Union of India decision. In that case, while interpreting Article 239AA of the Constitution – that defined the relationship between Delhi and the Union of India – the Supreme Court held that principles of federalism and representative democracy constituted the interpretive framework within which textual ambiguities were to be resolved. The principle is a simple one, but has powerful consequences: when used well, it ensures that the Constitution’s fundamental principles act as waymarkers upon the often perilous road of judicial interpretation; these principles help to anchor the Court within a principled adjudicatory framework.

In that sense, Chandrachud J.’s opinion has already done the work that the majority has left to a larger bench.

And incidentally, it also makes it clear that the Aadhaar Act is unconstitutional.

Guest Post: Constitutional Silences, Textual Impasses, and Structuralism – A Comparative Analysis of the NCT Delhi and Miller Judgments

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Article 239, Federalism, united kingdom

(This is a guest post by Preetika Mathur, and is a follow-up to her previous piece on this subject.)

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The purpose of this post is to highlight some interesting similarities between the famous R (Miller) v Secretary of State for Exiting the European Union (“Miller”) decision of the UK Supreme Court and the recent NCT Delhi judgment of the Indian Supreme Court. A discussion of the key issues in NCT Delhi can be found here, here and here. An analysis of the final judgment can be found here.

The UK Supreme Court gave its judgment in the Miller case on 24^th January 2017. The Indian Supreme Court gave its judgment in NCT Delhi on 4^th July 2018. This post does not seek to argue that the Indian Supreme Court was necessarily influenced by Miller in its own reasoning – though no Constitutional Court decides cases in a vacuum. Rather, this post demonstrates how when faced with similar questions about the meaning of constitutional democracy, in two cases riddled with constitutional silences and textual impasses, the respective Courts resorted to similar tools from the limited judicial toolbox to reach their final decisions.

Similar Questions

Fundamentally, the central question for the Supreme Courts in Miller and NCT Delhi was the weight to be given to the constitutional principle of representative democracy in determining the key institutional relationships within a modern State. Specifically, the Supreme Courts in both cases had to decide on the extent to which to prioritise the value of representative democracy over other conflicting values advanced by the Union executives in both cases. In both cases the executive at the Federal level sought to prioritise the value of a stronger more empowered Union executive using the interests of the Nation State as a whole to justify their claim. In both cases, the Union executive claimed that a stronger more empowered executive at the Central level was in the interests of the unity, integrity and political expediency of the Nation State as a whole.

The Miller case arose from the Brexit referendum. In the referendum held on June 23^rd 2016, the UK voted to leave the EU by a majority of 51.9% for leave and 48.1% for remain. Article 50 of the Treaty of the European Union states that “any Member State” that “decides to withdraw from the EU in accordance with its own constitutional requirements” should serve a notice of that intention. In Miller, the Supreme Court was asked to decide on whether the UK’s constitutional requirements required the executive to obtain the prior authorisation of Parliament before it could serve its notice of intention to withdraw from the EU. The alternative contention advanced by the Government was that the executive could serve this notice of intention without prior Parliamentary permission.

The UK Government proposed to use its ‘Prerogative Powers’ to serve the notice of intention to withdraw from the EU without prior Parliamentary approval. Prerogative Powers find their origin in the personal powers of the monarch from the time when the monarch was the absolute and all powerful Head of State. The residue of these powers is now vested with the British Crown in Council – where the Crown (Queen) is merely nominal head with the residue of Prerogative Powers exercised by the Cabinet in reality. As Thomas Poole has written:

The UK Constitution recognises a bundle of prerogative powers… – or ‘Ministerial executive powers’, as a Commons Select Committee prefers to call them. These are the inherent common-law powers of the executive. ‘Inherent’ and ‘common-law’ because they have not been conferred by statute and their existence and conditions of application are matters to be recognized and determined by the courts (Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law Journal 255, 265-6). Although the bundle has dwindled significantly, it still covers a range of matters… The most important relate to national defence and foreign relations. What distinguishes them politically perhaps is the need for ‘unanimity, strength and despatch’ and a connection to the notion of salus populi (e.g. Chandler v Director of Public Prosecutions [1964] AC 763). What distinguishes them legally is that they do not require Parliamentary authorization.

The argument at the core of the Respondents case in Miller was that since the UK was a representative Parliamentary democracy, operationalising representative democracy took precedence over the governmental expediency gained through use of Prerogative Powers. Similarly in NCT Delhi the core of the Respondents case was that the Constitution through Article 239 AA had expressly conferred a Legislative Assembly on Delhi modelled on the Westminster style Parliamentary system with a Westminster style Cabinet. As a result, operationalising representative democracy had to take precedence over the priorities of the Union executive.

Similar Reasoning and Outcomes

Both cases are also similar because both the Supreme Courts used structuralist reasoning to navigate through constitutional silences and textual impasses. Vasudev Devdasan has already explained the difference between textual and structural approaches to constitutional interpretation in detail in his series of posts on NCT Delhi. In summary, textualism relies exclusively on the words of a particular provision in isolation from the broader institutional relationships created by the constitutional scheme. Structuralism does not look at the text of the provision in isolation. Instead, structuralism looks at the existence and position of a constitutional provision in its relationship to the existence and position of other constitutional provisions. This is in order to identify the institutional relationships envisaged by the Constitution in order to find answers to specific questions about institutional relationships.

Both Miller and NCT Delhi cases were riddled with silences – situations where the constitutional text does not speak. In his seminal piece ‘A Syntax of the Unsaid’ Professor Lawrence Tribe writes:

Indeed, to decree that we must ignore legal silences altogether is no more plausible than to command that we ignore the uncovered parts of a canvas or the pauses in a sonata…We must therefore reformulate, and reduce to more plausible dimensions, the resistance to silence as a source of law if the failure of that resistance is to be replaced with even a modest success. Without a more explicit grammar of how silences may and may not operate in the interpretation of law – a syntax of the unsaid – we may say that law cannot be made by silence, but the echo will return: “Oh yes it can, just watch!

In both the Miller and NCT Delhi cases, the opposing parties construed the textual silences in a manner that allowed them to arrive at diametrically opposed conclusions.

In NCT Delhi the constitutional text of Article 239 AA was silent on the Delhi’s precise place in the hierarchy between Union Territory and State. The Constitutional text of Article 239 (AA) (4) was silent on whether the Lieutenant Governor was bound by the ‘aid and advice’ of the constitutionally mandated Council of Ministers of the Delhi Government. Article 74 on the other hand explicitly says that the President of India “shall” act in accordance with the Aid and Advice of his Council of Ministers. Article 246 was silent on whether Delhi was a Union Territory for its purposes. The proviso to Article 73 was silent on whether it was applicable to Delhi.

In NCT Delhi, the Central Government tried to fill these silences with the assertion that Delhi was merely a Union Territory simpliciter. As a result, even though Delhi had the same legislative competence as a State for all purposes apart from relating to Entries 1, 2 and 18 of the State List it would not have the same executive competence as a State. This meant that Parliament had plenary powers with respect to the Union Territory of Delhi under Article 246 and the Union’s coextensive executive powers remained unaffected by the proviso to Article 73. As a result the Lieutenant Governor was not bound by the ‘aid and advice’ of his Council of Ministers.

 The Delhi Government tried to fill the silences in the constitutional text with the assertion that Delhi was a unique constitutional hybrid. This led the Delhi Government to arrive at the exact opposite conclusions to the Central Government with respect to the same constitutional provisions. The Delhi Government argued that since Delhi had the same legislative competence as a State for all purposes apart from Entries 1, 2 and 18 the Constitution intended to treat Delhi akin to a State for the purposes of the executive powers of the Delhi Government. As a result, Delhi had the same executive competence as a State in all areas apart from Entries 1, 2 and 18. Further, since Delhi was not a Union Territory simpliciter but a unique constitutional hybrid the proviso to Article 73 had bite with respect to Delhi and the Union’s executive powers were displaced by the proviso to Article 73.

The Miller case too, was riddled with constitutional silences. In Miller, like in NCT Delhi both parties used these silences to arrive at diametrically opposed interpretations of the same legal provisions. The Government wished to rely on an unwritten Prerogative Power in an unwritten constitution. The key pieces of legislation governing the issue were silent on whether the Prerogative claimed by the government really did exist and whether it could be used to remove the UK from the EU. The key pieces of legislation were The European Union Referendum Act 2015 which made legal provision for the Brexit Referendum and The European Communities Act 1972 which made the UK a member of the EU and brought EU law into UK domestic law. These silences in The EU Referendum Act 2015 and The European Communities Act 1972 led the Government to argue that they had a pre-existing Prerogative Power to make and unmake treaties at the international level. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on the issue of Prerogative Powers and neither Act explicitly or implicitly removed the pre existing Prerogative Power this pre existing power could be used by the Government to serve its notice of intention to withdraw. The Respondents arrived at the exact opposite conclusion from the silence. They argued that the Government did not have the pre existing Prerogative Power that they claimed to have. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on Prerogative Powers and neither Act expressly conferred such a power, the Government had no such Prerogative Power that it could rely upon. Specifically, the Governing was seeking to use Prerogative Power to alter and destroy domestic law rights – the Respondents argued that the Government had no Prerogative Power at the international level to alter or destroy domestic law rights.

The diametrically opposed constructions of the constitutional silences is also well demonstrated by the conflicting usage of the same metaphor by the Government and the Respondents throughout the case. Both sides relied on the metaphor of the “conduit pipe” to different ends. The Government argued that The European Communities Act 1972 (which brought EU law into UK domestic law) was merely a “conduit pipe” for whatever rights and obligations the Government decided to subscribe to at the international level. They relied on Section 2 of The European Communities Act 1972 which provides that EU law rights, remedies etc “from time to time provided for by or under the Treaties” were “to be given effect or used in the United Kingdom”. The Government argued that the words “from time to time” meant that The European Communities Act envisaged that the Government could through its treaty making/unmaking Prerogative at the international level increase or decrease the flow of rights and obligations down this pipe. The Government argued that The European Communities Act 1972 was ambulatory in that it envisaged varying levels and intensities of rights flowing down this pipe over time.

The Respondents in Miller turned the “conduit pipe” argument on its head. They argued that once rights had flowed down the pipe to become a part of domestic law, the Government did not have the Prerogative Power at the international level to take away or alter these domestic law rights. Further, the Respondents argued that The European Communities Act 1972 created a new legal order by introducing a new source of law into the UK and the Government was not simply seeking to decrease the flow of rights and obligations down the pipe but to destroy the pipe altogether. They argued that Section 2 of The European Communities Act 1972 did not envisage the destruction of the “conduit pipe” altogether. They argued that there is a vital difference between changes in domestic law resulting from variations in the content of EU law that arise from new EU legislation which “flow down the pipe” and changes in domestic law resulting from withdrawal from the EU altogether.

In NCT Delhi all the judgments of the Supreme Court (both majority and separate concurring) resorted to structural reasoning to cut through the silences and textual impasse in that case. All judgments relied heavily on and prioritised the structural principle of representative Parliamentary democracy concluding that the Lieutenant Governor was bound by the ‘aid and advice’ of his Council of Ministers. Specifically, this was because Article 239 AA was an exercise of constituent power; that had introduced Westminster style representative democracy into Delhi with a Westminster style cabinet system of government. An aspect of a Westminster style cabinet was the principle of collective responsibility. As a result, ultimate executive authority must vest with the Council of Ministers in Delhi and the Lieutenant Governor must be bound by their ‘aid and advice’ where Delhi has legislative competence (this was subject to the limitation that Delhi’s status as the national capital would require situations where this principle could be departed from, as acknowledged by Justice Chandrachud in his concurring opinion).

The Miller case was heard by a 11 judge bench of the UK Supreme Court. The Supreme Court by a majority of 8-3 found in favour of the Respondents. The majority gave a single judgment, Lord Reed, Lord Carnwarth and Lord Hughes dissented and wrote separate judgments each.

In Miller too the majority of the Supreme Court resorted to structural reasoning to identify the best approach to fill the silence and resolve the textual impasse. It viewed the dispute in the Miller case from several distinct structural perspectives to determine the most appropriate outcome in the case.

The first of these perspectives involved examination of the institutional relationships between the judiciary, the Crown and Parliament over the course of several centuries. The court noted that over this historical period the judiciary had progressively curtailed the Prerogative Powers of the Crown to further the interests of representative democracy and transfer power from the Crown to Parliament. The Courts had progressively curtailed the circumstances in which Prerogative Powers could be resorted to as well as the manner in which they could be used and the extent of their impact on domestic laws when used. The majority judgment of the Supreme Court described that in many ways the history of the common law had been an unbroken history of limiting the Prerogative. The Supreme Court cited a long unbroken line of authorities through which these developments had taken place. The first of these cases was the 17^th Century Case of Proclamations. The Court then cited a number of important 20^th Century decisions. This included the following extract from Lord Parker’s judgment from the 1916 decision of The Zamora:

The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity.

The Court also cited the 1920 judgment of Attorney General v De Keyser’s Royal Hotel Ltd and the 1995 decision in R v Secretary of State for the Home Department, Ex p Fire Brigades Union. It held that these two cases had crystallised the principle that that the Crown cannot alter the common law or statute by an exercise of the Prerogative Power and nor can the Crown frustrate the purpose of a Statute – even if that Statute is not yet in existence. It also cited the 1965 judgment of Burmah Oil Co (Burma Trading) Ltd v Lord Advocate in which Lord Reid explained that the Royal Prerogative is a source of power which is “only available for a case not covered by statute. This historical analysis of institutional relationships within the British Constitution helped the Court to identify the role that it ought to take in the Miller case. After conducting its historical analysis of institutional relationships as developed through the case law, the Court concluded that: “It would be inconsistent with long standing and fundamental principle for such a far reaching change to the UK Constitutional arrangements to be brought about by ministerial decision or ministerial action alone”.

 This historical analysis and consideration of the development of the institutional relationship between judiciary, executive and legislature led to the second structural perspective that was used by the majority of the Supreme Court. The majority considered the proper relationship between the people of the United Kingdom and the executive. The majority concluded that this meant that the executive could not deprive people of domestic rights through Prerogative Power at international level. Such deprivations could only done by Parliament as this better protected the democratic interest of citizens.

The third structural perspective used by the majority of the Supreme Court was to compare the institutional arrangements in the British Constitution before The European Communities Act 1972, after its enactment and after its destruction to determine what had changed. The Court did not resort to more textualism to resolve the conflicting interpretations of the constitutional silences in The European Communities Act 1972 but instead opted to examine the bigger structural picture. It agreed with the Respondents that The European Communities Act had “effected a fundamental change in the constitutional arrangements of the United Kingdom” and introduced a new source of law entirely. It held that as a result the silences in The European Communities Act 1972 could not be construed to mean that Parliament had contemplated or intended that Ministers could cause the United Kingdom to withdraw from the European Treaties without prior Parliamentary approval.

The National Tax Tribunals Judgment: Two Interesting Constitutional Issues

Tags

structural analysis, transformative, tribunals

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 Queen. Hinds 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.

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

Tags

ambedkar, article 15, constituent assembly debates, history, horizontal rights, non-discrimination, post-colonial theory, structural analysis

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.

Indian Medical Association v UoI’s structural reading of Article 15: Did the Court go too far?

Tags

affirmative action, article 15, non-discrimination, structural analysis

Readers will recall that we have defended two readings of Article 15 that would militate against a textual-originalist approach to the Constitution: the Delhi High Court’s reading of “sexual orientation” into “sex” (here), and a hypothetical problem of inter-sectionality (here). We justified both readings on two grounds: first, a structural reading of the Article 15 in the broader context of Part III reveals that the Constitution subscribes to something we called the non-discrimination principle, i.e., “government cannot discriminate on the basis of essential aspects of any individual’s private and public identity (i.e., the series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change.” Both sexual orientation and inter-sectional positions fall within this category. And secondly, both readings are grounded in an intelligible interpretation of the text of Article 15.

In our previous posts, we focused primarily on the non-discrimination principle, but here I would like to pause briefly at the second argument. As we have observed before, it is crucial to remember that structure flows from text. It is not – as Mathew J. and Justice Holmes both observed in related contexts – a brooding omnipresence in the sky; it is firmly tethered to text, to history, to constitutional and political tradition, and to precedent. The non-discrimination principle is derived from a close reading of the specific categories listed in Articles 15, 16, 17 et al, raised to a level of abstraction that unites all of them without doing violence to any, and possesses the scope for bringing in analogous categories – that, again – it must at least be possible to support through text. A contrary position runs the grave risk of opening the floodgates to judicial legerdemain, where judges infuse into the constitutional text values that are their own, and not the Constitution’s.

Keeping this in mind, let us examine the Supreme Court’s opinion in its recent 2011 case, Indian Medical Association v. Union of India. Running into 160 pages of the judicial reports, IMA v. UoI is a long and complex case, dealing with a host of issues ranging from affirmative action, minority rights, the proper interpretation of Article 19(1)(g), the compatibility of Article 15(5) with the basic structure, and the role of the directive principles (and we shall have occasion to discuss this case at length when we discuss affirmative action). For the moment, let me focus, however, on one particular holding of the Court, that can be found in paragraphs 112 – 114. Briefly, the Court held that 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). Here’s how, in three steps:

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...”

Step One: Referring to certain comments by Ambedkar in the Constituent Assembly Debates, the Court read the word “shop” in a manner broad enough to include educational institutions (paying for and receiving a service). This brought educational institutions within the ambit of 15(2). For the purposes of argument, let us accept this as correct.

Step Two: The Court observed that entrance tests operate so as to discriminate against students who hailed from socially and educationally backward backgrounds. For the purposes of argument, let us accept this as correct as well.

Step Three: The Court then noted:

“There are two potential interpretations of the use of the word ‘only’ in clause (2) of Article 15. One could be an interpretation that suggests that the particular private establishment not discriminate on the basis of enumerated grounds and not be worried about the consequences. Another interpretation could be that the private establishment not just refrain from the particular form of overt discrimination but also ensure that the consequences of rules of access to such private establishments do not contribute to the perpetration of the unwarranted social disadvantages associated with the functioning of the social, cultural and economic order.“

Et voila! What Articles 15(1) and (2) prohibited was not just invidious discrimination on enumerated grounds, but also the consequences of such discrimination (in large part, social and educational backwardness); thus, any action that contributed to maintaining such social and educational backwardness fell foul of the Article 15 prohibitions.

Now, it is submitted that the word “only” can mean many things (and indeed, we plead guilty to having played fast and loose with the phrase “any of them” earlier on this blog); but in no circumstances, twist, stretch, bend or contort the word as you may, can it bear the stress the Court has put on it here, in the context of the sentence in which it has been used. The Merriam-Webster dictionary, for instance (and I invoke a dictionary with all due caution) lists four possible uses of the word “only”, the first two of which are applicable but do not support the Court’s conclusion, and the last two are not germane to the context.

Yet be that as it may, there is a more serious objection to be made. Let us agree that the object of Article 15 is to prevent the further entrenchment of exiting inequalities by prohibiting forms of discrimination. But if that was all that was at stake, the Constitution could simply have said that. Imagine a hypothetical Article 15: “all forms of discrimination that serve to perpetuate existing inequalities and entrench social and educational backwardness are hereby prohibited.” But that isn’t what the text says, and that isn’t all there is to it, because the Constitution also specifies the manner in which that object is to be achieved by laying out specific, proscribed categories of non-discrimination: caste, religion, place of birth, sex etc. In other words, the Constitution specifies the goal through the path.

And nor is this devoid of logic. As we have discussed before, what unites the categories that we find in 15, 17, 18 et al – caste, sex, untouchability and so on – is not only are they forms of private identity that one is born with and is more or less powerless to change, but that they are an essential part of one’s public identity – that is, the labels that our society imposes to classify and categorise its subjects. It is these societal labels, by virtue of being societal labels, that have been historically responsible for the worst and most invidious form of discrimination. And we can now see why the Court’s incorporation of social and educational backwardness into Article 15 is structurally flawed – not only is it controversial whether social and educational backwardness fits within the “born into and powerless to change” category, but more importantly, it is at best a fluid and amorphous set that in no way tracks the societally-imposed clarity and rigidity of sex or caste or race.

Now we may not agree with this logic. I do not myself; Article 15 misses a trick, I think, by failing to include “class”, a fundamental driving force of discrimination over the last two centuries; and it ignores, I believe, the arbitrary role of money in blocking access to goods and services. Recent scholarship has also cast doubt over the rigidity of categories such as race and sex. But that is besides the point: the story we are telling is the story of our Constitution, and not that of our individual convictions and values – and the most plausible story that takes into account text and structure is one that the Court, it is submitted with respect, does not keep faith with.

As a final structural point, we may also note that where the Constitution wishes to provide for socially and educationally backward classes, it has done so expressly (Articles 15(4), 15(5), 16(4)). Indeed, the First Amendment inserted Article 15(4) into the Constitution precisely in order to overcome the Champakam Dorairajan decision, where the Court struck down legislation on grounds of a 15(1) violation, rejecting an argument (then based on the DPSPs) that it promoted the interests of socially and educationally backward classes. By now reading that very same category into 15(2) (and therefore, by extension, 15(1)), the Court repudiates both its own past holding, as well as the legislature’s constitutional response to it, and thus makes a break with history that it fails to justify.

We part ways, therefore, with the Court, on its interpretation of Article 15(2); nonetheless, it is gratifying to note that the Court engaged in explicitly structural analysis (saying so directly at one point), which we have defended before as the best method of constitutional exegesis. There will, of course, be disagreements over outcome; but it is far more important that the Court identifies and follows a distinct, defensible and attractive analytical method when it adjudicates cases of a constitutional nature. Hopefully, in that respect, IMA v. UoI will serve as precedent to build upon.

Reading Article 15: Non-Discrimination and the Question of Inter-sectionality

Tags

intersectionality, non-discrimination

Article 15(1) of the Constitution states:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Now consider the following hypothetical: a State instrumentality refuses to hire only Dalit women. It hires both non-Dalit women and Dalit men on parity with everyone else. So, it does not discriminate on the basis of caste (it hires Dalits) or sex (it hires women), but upon a combination of both of them. Is there an Article 15 violation?

This issue is commonly known as intersectionality. Intersectionality studies the way in which commonly constructed categories like race, sex, religion (precisely the categories listed in Article 15) do not reflect isolated, hermetically-sealed and individuated systems of dominance and suppression, but invariably tend to overlap and interact. Accounts of power-hierarchies therefore, that focus on a single axis (e.g., racism, or casteism) are inevitably incomplete.

The manner in which this incompleteness affects legal analysis comes to the fore in the American case of De Graffenreid v. General Motors, a decision of the Eighth Circuit Court of Appeals. Prior to the passage of the Civil Rights Act, 1964, General Motors did not hire black women. After the 1964 Act, it was compelled to. In 1970, during a recession, it initiated a series of seniority-based layoffs, and consequently, the black women who had been hired in 1964 lost their jobs. Their discrimination claim was rejected by the District Court a decision that was, in substance, upheld by the Appeals Court (we need not go into certain technical procedural issues here), the crucial observation being:

“… this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.”

The problem with this argument, as Kimberle Crenshaw points out in this excellent article, is that it implies that “the boundaries of sex and race discrimination doctrine are defined respectively by white women’s and Black men’s experiences. Under this view, Black women are protected only to the extent that their experiences coincide with those of either of the two groups.'”

That brings us to the question of how to read Article 15(1). The article prohibits discrimination on grounds only of… [x, y and z]… or any of them. The key interpretive issue here is the role of the phrase “any of them” as adding to – or qualifying – “only”. According to judicial decisions, “any of them” ensures that the State cannot get around its obligations by discriminating on the basis of a prohibited category combined with a non-prohibited category. For example, in my organisation, I have a promotion rule based on seniority, but I exclude women from it. I am thus discriminating on the basis of both sex and seniority. The former is a prohibited category. The latter is not. So, I am not discriminating only on the basis of sex, but I am discriminating on the basis of sex nonetheless, and fall within the ambit of Article 15(1).

This is a straightforward case; the problem arises precisely in intersectionality claims, however, because in the Dalit-woman case we discussed above, I am neither discriminating on the basis of caste or on the basis of sex, but an amalgamation of the two – and because of the amalgamation; in other words, my specifically-tailored discrimination towards Dalit women ensures that – unlike the case of sex + seniority – I escape the textual ambit of the statute by escaping the prohibited categories altogether.

Two posts ago, we discussed how, in the context of Naz Foundation, reading sexual orientation into “sex” was the only way to honour the Constitution’s core commitment to the respect and the autonomy principles: the first, in particular, mandated that no discrimination was permitted on the basis of those defining labels that a person is born with, and that constitute her public (and private) identity. The textual reading posited above violates this commitment, and for that reason it must be rejected, notwithstanding precedent to the contrary.

What is the alternative? It is to read the term “or any of them” as including a prohibition on intersectional discrimination. This might appear linguistically strained, at first sight, but surely it is – to use a term coined by the UK Supreme Court – an “intellectually defensible” reading. In other words, “or any of them” is used after “only” to mitigate two situations: discrimination on the basis of a prohibited category combined with a non-prohibited category, which therefore escapes the “only” prohibition; and simultaneous discrimination on the basis of two prohibited categories that also therefore escapes the “only” prohibition, albeit for very different reasons.

This argument, of course, is based entirely upon the text and structure of the Constitution. I have not gone into Article 15 case law, primarily because – for the reasons adduced above – I think that the text and structure provide a satisfactory answer to what might appear – at first blush – the problem of intertextuality arising out of a plain reading of the text.

This might appear to be a mere semantic quibble; no doubt, if a case of this sort was to actually come before the Court, it would hold that an Article 15 discrimination case was made out, textually or not. Nonetheless, I think it reveals an interesting facet about our intuitions about discrimination, that are reflected in our constitutional text – we tend to think of discrimination as taking place through individual a priori categories (race, class, sex). Intersectionality tells us that this reflexive belief might exclude a set of extremely important experiences of discrimination; and that therefore, this deeper and richer sense of what discrimination is ought to be reflected not only in our changed attitudes, but in our laws as well.

Textualism vs Structural Analysis – or why the Court ought to Uphold Naz Foundation

Tags

akhil amar, cardozo, charles black, constituent assembly debates, dworkin, homosexuality, non-discrimination, s. 377, scalia, textualism, william eskridge

In the previous post, we noted that the concept of the basic structure, in both India and Germany, takes its shape and form not from any one or multiple clauses of the Constitution, but from “overarching principles” that explain and justify the Constitution as a whole. This method of analysis, which we may call “structural analysis” (as opposed to “textual analysis”) has received some amount of judicial and scholarly attention in the United States.  In his dissenting opinion in Panama Refining Co v. Ryan, Justice Cardozo observed:

“… the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.”

One year later, in Duparquet Co v. Evans, this time writing for the Majority, he added:

“There is need to keep in view also the structure of the statute, and the relation, physical and logical, between its several parts.” 

This theme was taken up by the famous constitutional scholar, Charles Black (who, incidentally, authored the petitioners’ briefs in Brown v Board of Education). In a series of three lectures, brought together into a book titled Structure and Relationship in Constitutional Law, Black developed the basic thesis that constitutional analysis involves “inference from the structures and relationships created by the Constitution in all its parts or in some principal part.” In the book, he discussed a number of hypotheticals in which famous American cases like McCulloch v. Maryland, Crandall v. Nevada, and Gitlow v. New York  would – he argued – have been decided in the same way even if the specific textual provisions that they relied upon did not exist – simply because of the inexorable logic of constitutional structure. In Crandall v. Nevada, for instance, Nevada’s imposition of a one-dollar tax upon leaving the State was held unconstitutional on the ground that the American constitutional structure, from the Preamble to the Supremacy Clause, clearly envisaged a unified people living in a unified nation, for which reason travel between states was a question of right, not of privilege.

This method is, of course, the exact antithesis of textualism. Textualism focuses on explicating the precise meaning of individual words at issue in important constitutional cases. It is a method championed by the American Supreme Court justice Antonin Scalia through various opinions from the bench, and in his book, A Matter of Interpretation. Broadly, Justice Scalia makes two arguments for preferring textualism over structural analysis: first, that structure affords much greater leeway for judicial discretion than does textualism; and secondly, textualism – in particular, Scalian textualism – that focuses on the original public meaning of disputed words – privileges the popular conception of these words, and is thus more faithful to democracy.

As to the first, the factual assertion is suspect, to say the least. District of Columbia v. Heller, a case about the American Second Amendment right to bear arms, provides a classic example of textualism’s own interpretive uncertainties: in that case, using unimpeachable textualist methodology, marshaling a vast array of historical sources (much of which overlapped), Justices Scalia and Stevens nonetheless managed to come to exactly the opposite conclusion about the scope of the Second Amendment. The broader point – as Dworkin argues repeatedly, and as Professor William Eskridge examines in some detail here – is that it is a mistake to think that “meaning” exists external to and beyond the interpreter, that it simply exists to be discovered by an impartial interpreter; a more accurate way of understanding meaning is to acknowledge, in the spirit of hermeneutics, that it is constructed by interpreters who bring to the enquiry their own set of fore-understandings. Once this is acknowledged, the idea that texts operate as passive depositories of meaning that by virtue of themselves, limit and constrain the interpretive enquiry, dissolves.

Further, it is a popular – yet invidious – mistake – to equate structural analysis to a free-wheeling moral enquiry that “ignores text”; no structuralist would deny that the constitutional text is the point of departure, that it informs any constitutional analysis – and indeed, structure itself supervenes over text; as Black himself stated:

“… the structure and relations concerned are themselves created by the text, and inference drawn from them must surely be controlled by the text.”

Justice Scalia’s second argument – about democracy – holds even less water. As Professor Akhil Amar points out, the American Constitution was not ratified clause-by-clause, but as a whole – the decision was essentially in the form of “take-it-or-leave-it”. In such a scenario, it would actually be more faithful to popular democracy to interpret the Constitution as a coherent whole, with individual clauses taking their meaning from a sense of the whole, rather than the other way around.

In India, of course, the Constitution was never ratified, so the Scalia-Amar disputation is perhaps academic. Nonetheless, the speeches in the Assembly Debates (for instance, Nehru’s famous Objectives Resolution) do seem to reveal that our framers were well aware that they were drafting a document animated by certain fundamental purposes, and that individual clauses were designed to fulfill those purposes. To this we can add Dworkin’s argument, discussed in the last post, that principled consistency in law-making is an essential pre-requisite for political legitimacy.

These scattered observations are not meant – in any way – to serve as a full-blown defence of structural analysis in the Indian constitutional context; they are meant only to serve as a point of departure, and at the very least, establish it as a credible (and perhaps intuitively more desirable) alternative to textualism (and what often comes to be – but by no means necessarily is – its corollary, originalism). Let us now consider what structural analysis would  look like in practice.

As we all know, the Delhi High Court in Naz Foundation v. NCT decriminalised homosexuality, holding that insofar as S. 377 of the Indian Penal Code made sexual intercourse between consenting adults a crime, it was unconstitutional. This decision was appealed, heard by a two-judge bench in 2012, and the decision is due within the next three months. The Delhi High Court grounded its judgment in many constitutional provisions; specifically, let us consider its holding on Art. 15(1), which states:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

The Court held that the word “sex” includes “sexual orientation”, and that therefore, discrimination on the basis of sexual orientation is impermissible.

Did the “public meaning” of the word “sex” in 1950 include sexual orientation? Perhaps not – that is, if the question makes any sense in a country where the majority didn’t even speak English. Did Nehru, Ambedkar, Patel and the rest contemplate that they were prohibiting discrimination on the basis of sexual orientation? Probably not – but then again, they probably didn’t think they were permitting it either – in all likelihood, the issue didn’t cross their minds. What would they have said if the question had been put to them? We don’t know – perhaps they would have gone with the dominant prevailing opinion that homosexuality was a form of disease (but perhaps not); what would they conceivably say if we could bring them back from the grave, put copies of the Wolfenden Committee Report, reams of medical evidence and the lead opinion of Lawrence v Texas before them – and ask them for their opinion? Again, we don’t know.  Textualism, originalism, original intent – these theories simply give us little to no purchase on the issue. Yet even if they did, their relevance would be limited at best – because as we have argued, the enquiry is not about determining the most accurate possible meaning of a given text.

So much for what we don’t know. Here is what we do know: Article 15 prohibits discrimination on a number of grounds: religion, race, caste, sex and place of birth. With the possible and partial exception of religion, what unites these features is that they are all essential aspects of any individual’s private and public identity (by public personality, I mean a series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change. To this we can add Article 16(2) (prohibition of discrimination in employment on similar categories); Article 17 (prohibition of untouchability – discrimination on the basis of birth); and Article 18 (abolition of titles – advantages (a form of discrimination), normally on the basis of birth). Let us – summarily – call this the “non-disrcimination principle”.

Now let us consider Articles 19 and 25. Article 19 guarantees the freedom of speech and expression, assembly, association, movement, residence and profession; each of these freedoms, it can hardly be disputed, are fundamental for two reasons: first, they are essential expressions of individual (and, for that matter, communitarian) personality; in the words of Justice Kennedy in Planned Parenthood v Casey:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life…. people have organized intimate relationships and made choices that define their views of themselves and their places in society.”

Secondly, as Dworkin puts it, these freedoms ensure that every citizen of the polity is provided the opportunity to contribute towards shaping the moral, cultural and political environment that she finds herself in – and that that, in turn, is the very essence of government according equal respect and concern to all its citizens. To this we add Article 25, that guarantees the freedom of conscience and religion (and further, the entire scheme from Articles 26 to 30); and indeed, arguable the two most important freedoms within this set (speech and conscience) are not limited by public interest concerns. Let us summarily call this the “autonomy principle”.

We are now in a position to understand why not only the Delhi High Court’s reading of “sexual orientation” into “sex” was not only correct, but the only possible correct decision. Our Constitution is structurally committed to a two-pronged principled attitude towards individuals: freedom in those matters that are related to the most fundamental expression of one’s humanity and personality (autonomy principle); and no discrimination on the basis of aspects of private and public identity that a person is born with and into (non-discrimination principle). And these principles stem not from any one provision, but a combination of Articles 14, 15, 16, 17, 18, 19, 25 and 26 to 30.

Can anyone seriously deny that sexuality is integrally – and centrally – consistent with both these principles? Constitutionally, therefore, there is no warrant for the Supreme Court to interfere with the judgment of the Delhi High Court; a contrary opinion would imply that our Constitution is committed to the non-discrimination and respect principles (as discussed above) – but in an entirely insupportable, capricious, arbitrary and unprincipled fashion, withholds that commitment from homosexuals. That certainly cannot be the Constitution we live under, or the Constitution to which we owe our allegiance.