Category Archives: Political Theory

From a Culture of Authority to a Culture of Justification: The Meaning of Overruling ADM Jabalpur

The nine-judge bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs Union of India is now four-and-a-half months old. The verdict, which held that there exists a fundamental right to privacy under the Indian Constitution, has been analysed threadbare. Its implications for decisional autonomy, personal choice, State surveillance, informational self-determination, and many other facets of privacy, have been debated and discussed. In the coming months, the Supreme Court will have an opportunity to cement the legacy of Puttaswamy, when it hears cases pertaining to almost all these issues. However, there is one aspect of the judgment that has received universal approbation, but no analysis. This is the Court’s decision to overrule its 1976 judgment in ADM Jabalpur vs Shivakant Shukla, the Emergency-era verdict that is widely accepted to mark the “lowest point” in the Court’s history.

Recall that ADM Jabalpur concerned the question of whether individuals who had been preventively detained by the State had the right to approach the Courts in a habeas corpus petition. The background context was the existence of a Presidential proclamation of a State of Emergency; this Proclamation also suspended the the locus standi of all individuals to move the Courts for relief, in case they were detained. A majority of the Supreme Court held that the Presidential Proclamation had validly suspended the remedy of habeas corpus under the Constitution; and because there existed no rights or remedies outside the confined of the Constitution, the Presidential Proclamation acted as a complete bar to exercising the fundamental right to life and liberty. Consequently, a detained person could not approach the Courts arguing that his detention was illegal or unconstitutional.

In Puttaswamy, Justice Chandrachud (writing for a plurality of four judges), Justice Nariman and Justice Kaul all categorically overruled ADM Jabalpur. Their reason was that there were certain basic rights that were recognised by the Constitution, but not conferred by it. These rights were inalienable, and inhered in all human beings simply by virtue of their being human. Specifically, therefore, Puttaswamy overruled the finding in ADM Jabalpur that the Constitution was the sole repository of the rights of citizens.

A narrow view of Puttaswamy would limit it to doing only so much. I think, however, this would be a mistake. It would be a mistake because ADM Jabalpur’s ruling on the character of rights under the Constitution cannot be taken in isolation. It was part of a larger judicial logic that, following the South African Constitutional scholar Etienne Mureinik, I shall label the “culture of authority.” And the repudiation of ADM Jabalpur in Puttaswamy, I will argue therefore, was a repudiation of the culture of authority itself; Puttaswamy is best understood as providing a bridge – a bridge from ADM Jabalpur to a new understanding of the Constitution, an understanding that is based on the “culture of justification.”

ADM Jabalpur and the Culture of Authority 

Recall that in ADM Jabalpur, there were two issues. The first was whether the Presidential Proclamation of Emergency acted as a complete bar to the enforcement of the individual right to life and personal liberty in the courts. The second was the constitutional validity of Section 16(9A) of the Maintenance of Internal Security Act, that allowed for a detenu not to be given access to the grounds of his detention. The broader political context, of course, was Prime Minister Indira Gandhi’s decision to impose an Emergency on the basis that there was a grave internal disturbance that threatened the life of the nation.

Consequently, ADM Jabalpur was delivered during a “state of exception” – that is, a situation where the Executive has suspended the normal functioning of the state, ostensibly to deal with an existential threat. The four majority opinions reflect this in granular detail. The reasoning that culminated in the majority holding that the detenus could not approach Court challenging their detention was based on four principal prongs, each of which reflected the logic of the state of exception.

A. The State of Exception 

The first prong was based on the proposition that the questions of when circumstances arose that justified the imposition of a state of exception (“Emergency”), and what rights and remedies citizens were to be allowed during a state of exception, were to be decided solely by the Executive. As Justice Beg observed:

Laws and law Courts are only a part of a system of that imposed discipline which has to take its course when self-discipline fails. Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled by forces operating from within or from outside the country. What these forces are, how they are operating, what information exists for the involvement of various individuals, wherever placed, could not possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.

Similarly, Justice Chandrachud wrote that “the facts and circumstances leading to the declaration of emergency are and can only be known to the Executive… Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts of law.” He went on to state that:

The mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes ins personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one’s own pre-disposition. is conducive to a more realistic appraisal of the emergency provisions.

At the heart of this articulation is not only the idea that extraordinary times call for extraordinary measures, but also that the determination of when extraordinary times have come upon us, and what extraordinary measures are needed, are for the State to decide. As the Nazi legal theorist Carl Shmitt wrote, “the sovereign is he who decides the State of exception.” According to the Jabalpur majority, this aspect of sovereignty lay solely with the Executive. So, Justice Chandrachud was able to write:

The people of this country are entitled to expect when they go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament, while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.

The same logic was at play in the Majority’s decision to uphold Section 16(9A), with Chief Justice Ray noting that:

The reason why Section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power… the grounds of detention and any information or materials on which the detention and the declaration were made are by Section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose.

A corollary to this was that the very act of vesting such extraordinary power with the Executive raised no constitutional concern. Justice Bhagwati, for example, held that the mere possibility or hypothesis that power might be abused was no ground to deny the existence of the power itself. And Chief Justice Ray noted that:

People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious alignment of the governance of the country. Quite often arguments are heard that extreme examples are given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

B. Rights and Remedies

Secondly, ADM Jabalpur stood for the proposition that the removal of a remedy did not affect the existence of a right. The Presidential proclamation in question provided that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution would remain suspended for the period of the Emergency. All four judges in the majority held that by virtue of the Presidential Proclamation of Emergency, it was not that Article 21 was removed or ceased to exist; it was simply that a detenu could not approach the Court under writ proceedings to enforce his right under Article 21.

C. Jurisdiction of Suspicion 

Thirdly, ADM Jabalpur endorsed and authorised what Justice Beg referred to as a “jurisdiction of suspicion”:

Provision for preventive detention, in itself, is a departure from ordinary norms. It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature. Its object is to prevent a greater danger to national security and integrity than any claim; which could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a “jurisdiction of suspicion.”

The crucial point was that the validity or reasonableness of the suspicion was entirely up to the Executive to decide. Since the right to move Court stood suspended, no detenu could approach a judicial authority and attempt to prove that the “suspicion” on the basis of which he had been detained was actually groundless, or illegal, or motivated by mala fides. Here again, the overarching justification was that of national security.

D. Salus Populi Est Supreme Lex

Lastly, ADM Jabalpur stood for the proposition that the liberty of the individual was not a paramount value under the Constitution, but simple one among many values to be weighed in the scales – and, in particular, always to be overriden by the principle of “salus populi est supreme lex” (“regard for public welfare is the highest law”). For example, Justice Beg warned against “a too liberal application of the principle that courts must lean in favour of the liberty of the citizen, which is, strictly speaking a principle of interpretation for cases of doubt or difficulty.” This, in turn, was drawn from the belief that individual liberty was a “gift” bestowed by the Constitution and the State, which could be withdrawn during a state of exception. For this, all for judgments of the majority relied upon the wartime British judgment in Liversidge vs Andersen, which had upheld the untrameled power of the Home Secretary to detain people, free from the constraints of judicial review. As Justice Beg wrote:

Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justiciable, but a political or administrative issue.

Let us now sum up the elements of the “culture of authority” that was at the foundation of the majority opinions in ADM Jabalpur.

  • There exists a state of normalcy and a state of exception (the paradigmatic example of which is an Emergency).
  • The Executive has the sole prerogative of determining when circumstances exist that a State of Exception ought to replace the default state of normalcy, and what is to happen with respect to citizens’ rights during a State of Exception.
  • The Executive is guided by the principle of “salus populi est supreme lex” (regard for public welfare is the highest law). It is not for the Courts to ask whether:
    1. The conditions requiring the state of exception to be called really exist or not (summed up by defining Court defining the preventive detention powers as a “jurisdiction of suspicion”, and disclaiming the need for showing proximity.
    2. Whether the Executive’s actions actually serve public welfare or not.
  • During the State of Exception, the Executive can suspend rights, suspend remedies, and be the sole arbiter both for the content of the right and for the remedy.
  • The fact that such a power is vested in the Executive and is capable of abuse is no ground for the power not existing. The Executive is always presumed to act in good faith.
  • In sum: “salus populi est supreme lex” is like the Ninth Schedule of constitutional interpretation.

The Foundations of Justice Khanna’s Dissent

In his sole dissenting opinion, Justice Khanna launched a fundamental challenge to this entire way of thinking. Justice Khanna’s dissent was not based merely on a difference with the majority about the question of whether rights existed outside the Constitution or not. Rather, his different was more fundamental, and went to the root of what it meant to live under a Constitutional republic. According to Justice Khanna, at the heart of a constitutional republic was the maintenance of a balance of power between State and individual. The issue was not whether the State may or may not abuse its powers, and the manner in which it might abuse its power in order to violate individual liberty. The issue, rather, was that the very existence of certain kinds of power with the State was a violation of liberty. As he noted:

“…experience should, teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion-of their liberty by evil-minded persons. Greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of few.”


Whether such things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that Article 21 is the sole repository of the right to life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during the period of emergency against deprivation of life or personal liberty. In order words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.

Constitutionalism meant curtailing what the State was able to do its citizens. To give the State power to both determine the state of exception, and then also to determine what rights and remedies citizens had during such a period, simply on the invocation of salus populi, was to make a mockery of the very idea of a constitutional republic. Consequently, Justice Khanna rejected the argument that, in the interests of public safety and public welfare, the Executive could be left to solely determine the scope and ambit of rights enjoyed by citizens, noting that “the power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law.”

A corollary of this was Justice Khanna’s rejection of the “jurisdiction of suspicion” – that is, the idea that during the state of exception, the Executive was vested with the sole power of curtailing the liberty of any individual it suspected of being a threat to the established order:

Normally, it is the past conduct or antecedent history of a person which shows a propensity or a tendency to act in a particular manner. The past conduct or antecedent history of a person can, therefore, be appropriately taken into account in making a detention order. It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he is likely in the future to act in a particular manner. In order to justify such an, inference, it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time. It would, for instance, be normally irrational to take into account the conduct an activities of a person which took place ten years, before the date of ins detention and say that even though after the said incident took place* nothing is known against the person indicating ins tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that ins detention is necessary. It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. The nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has links with a particular’ foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting; in a manner prejudicial to the security of India, might well pass a detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity. If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the) detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.

Towards the Culture of Justification 

Justice Khanna’s dissenting opinion in ADM Jabalpur, reminiscent of Lord Atkins’ dissent in Liversidge vs Andersen, exemplified the “culture of justification”. Mureinik writes thus:

If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.

The phrase “every exercise of power is expected to be justified” is at the heart of this vision of constitutionalism. In particular, it is a complete repudiation of salis populi supreme est lex. The State cannot simply decide to compel its citizens by invoking the larger goal of public welfare. The State must, rather, justify every act of compulsion. It must justify, for example, that its exercise of power will actually serve public welfare. It must explain how it will do so. It must explain that the only way of doing so is through the route of force and compulsion. It must prove that there is no other non-coercive way of achieving that goal, and that it is not imposing any more compulsion than is strictly required in the interests of public welfare. It must show that the amount of power it arrogates to itself in order to carry through its coercive action is proportionate to the importance of the goal it seeks to achieve. And the State cannot impose a regime of permanent suspicion: a regime in which the only justification for the exercise of coercion is that all citizens are potential criminals, and preventive compulsion is the only effective mechanism of preserving the public good. The culture of justification prohibits the State from presuming criminality and law-breaking.

And most importantly, the State cannot be the sole judge and arbiter of these questions. It is the constitutional courts that must carefully examine and scrutinise each of these issues, where the exercise of power is concerned. The courts need not attribute bad faith to the State, or assume the existence of abuse; rather, as Justice Khanna pointed out all those years ago, the Court must be “most on… guard to protect liberty when the Government’s purposes are beneficent.” Therefore, it is precisely when the State claims salus populi, and asks the Court to back off so that it can freely exercise compulsion in order to secure public welfare, that the Court must be at its most vigilant. It is then that the hardest and most searching questions must be asked of the State, and the State put to strict proof in answering the questions outlined above. To adopt a hands-off approach on the basis that these are questions of “high State policy”, and that it is not for judicial authorities to enter into the realm of policy-making and second-guess the State on issues of general welfare, would be only to repeat the mistake of ADM Jabalpur, and ignore the lesson of Justice Khanna.

In the coming months, the Court is scheduled to hear a number of constitutional cases that have far-reaching effects on individual freedom and State power. When it decides those cases, the shadow of Puttaswamy and of Justice Khanna will loom large. It is now for the Court to complete the transformation from the culture of authority to the culture of justification, which was the promise of the Constitution, the hope of Justice Khanna when he dissented, and the beginning of the path outlined in Puttaswamy.

This is, after all, a Constitution that chose to make the individual its basic and most fundamental unit.



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Exclusionary Covenants and the Constitution – III: Zoroastrian Cooperative and Political Liberalism

In the previous post, we discussed – and criticized – the 2005 Supreme Court judgment in Zoroastrian Cooperative on two grounds: first, the Supreme Court was incorrect in conflating statutory policy and public policy; and secondly, it was incorrect in failing to distinguish between holding an exclusionary covenant unconstitutional, and in refusing judicial enforcement of it.

While the judgment of the Court is, I submit, flawed as a general exposition of the law on exclusionary/restrictive covenants, that does not settle the question of whether the outcome of the case was correct. This is because, in addition to its arguments on the freedom of private transactions and restricting public policy to the four corners of the statute, the Court also invoked Article 19(1)(c) of the Constitution – the fundamental freedom to associate. Part of the Court’s public policy arguments, indeed, appear to turn upon the unconstitutionality of requiring persons to “associate” with others that they do not want to associate with, which – according to the Court – would have been the outcome had the exclusionary covenant been left unenforced.

There is, however, a problem with this argument. The statutory right to contract is not the same as the constitutional freedom of association. The Indian Contract Act, for instance, places numerous restrictions upon the freedom to contract that go beyond the Article 19(4)’s permissible limits upon the freedom to associate. More importantly, a quick glance at the Constituent Assembly Debates (here, here, and here) reveals, unsurprisingly, that the freedom of association was considered to be an essential aspect of personal civil liberty, akin to the freedom of speech and the freedom of movement, contractual rights being nowhere mentioned. Historically, the freedom of association has been about protecting the rights of labour unions, religious minorities and other unpopular groups to organize and defend their rights or their ways of life, as the case may be. The important Indian cases have also understood the freedom of association to be about such purposes (see here, here and here). And indeed, Daman Singh would appear to uphold this view, when it expressly rejected the application of 19(1)(c) to Cooperative Societies (the Supreme Court in Zoroastrian Cooperative did attempt to distinguish that case).

Therefore, it is clearly problematic when in Paragraph 29, Zoroastrian Cooperative observed:

“An aspirant to membership in a co-operative society, is at arms length with the other members of the society with whom he enters into the compact or in which he joins, having expressed his willingness to subscribe to the aims and objects of that society. In the context of Section 23 of the Contract Act, something more than possible or plausible argument based on the constitutional scheme is necessary to nullify an agreement voluntarily entered into by a person.” (Paragraph 29)

It is problematic because insofar as the Court speaks about arm’s-length transactions and holds membership in a Cooperative Society akin to a contract, Article 19(c) is not in play. There is, moreover, a bigger problem: to the extent that the Court does hold such membership akin to an arm’s-length contract, then the primary justification for its statutory-policy-equates-public-policy argument is clearly flawed. As we have argued in the previous post, public policy exceptions to contracts constitute a clear common law category, and are not restricted to the four corners of the statute. In Gherulal Parekh, for instance, the Court surveyed a vast body of common law precedent to hold that “public policy” was equivalent to “the public good”, and that there were clear common law categories (e.g., “sexual immorality”) of acts against public policy (for the common law exposition of the public policy exception, see Holman v. Johnson (the clean hands doctrine as an aspect of public policy), and Lord Sumption’s lecture here) . Subsequently, the scope of the public policy exception was vastly (and, in my submission, incorrectly) expanded in Brojo Nath Ganguly, but both these cases were united in implicitly – but clearly – rejecting the four-corners-of-the-statute argument in Zoroastrian Cooperative.** 

We are therefore faced with the following situation: to the extent that Zoroastrian Cooperative is based on principles of contract law, the two major bases for the decision – public policy and freedom of association – are unambiguously incorrect. The case, therefore, can be saved only by arguing that it is not, after all, about contract law – and therefore, crucially, is not precedent for the unconstitutionality of unenforceability of exclusionary/restrictive covenants generally – but about something else that justifies invoking the freedom of association. What might that be?

I suggest that the answer lies in a constitutional provision that was invoked in argument, but not directly relied upon by the Court: Article 29, that guarantees the the rights of “citizens… having a distinct language, script or culture of [their] own…to conserve [it].” This provision, I would argue, helps us to understand why the decision in Zoroastrian Cooperative might have been correct. To fully grasp the philosophical issues at stake, however, we must turn to the important work of John Rawls.

In his book, Political Liberalism, and in the essay Justice as Fairness, Rawls lays out the groundwork of political liberalism. He takes as given the fact that in a liberal democracy, with political institutions that allow reasonably free thought and discussion, over time, citizens will come to affirm very different world views, religions, moral codes and ways of life (these he calls “comprehensive doctrines”: examples would be christianity, hinduism, utilitarianism, and so on). This basic fact of pluralism is something that characterizes – and is a permanent feature of – a modern liberal democracy. Insofar as these differing philosophies, religions and world views are reasonable (that is, consistent with the basic liberal idea of society as a system of fair cooperation between free and equal persons), Rawls takes their existence (being the upshot of the free exercise of reason by autonomous individuals) to be of value.  The basic question, then, is this: how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical and moral doctrines? (PL, p. 4)

Rawls’ answer is to find an overlapping consensus – that is, a set of principles of justice, upon which public/State coercion is based and justified – that can be endorsed by – or at least, are consistent with – the plurality of reasonable comprehensive doctrines affirmed by the citizens of the polity. And that can happen only if these principles of justice are “independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm.” (PL, p. 9) This is what Rawls means by a “political conception of justice”: that is, a conception that applies to “society’s main political, social and economic institutions, and how they fit together into one unified system of social cooperation…” (PL 11, 39),  without affirming or denying the truth or validity of religious/moral ideas and philosophies, and what they have to say about life, personhood, character, familial and associational relationships, and so on. What is crucial to the political conception of justice is that: “its content is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of democratic society. This public culture comprises the political institutions of a constitutional regime and the public traditions of their interpretation, as well as historic texts and documents that are common knowledge. Comprehensive doctrines of all kinds – religious, philosophical and moral – belong to what we may call the “background culture” of civil society. This is the culture of the social, not of the political- it is the culture of daily life, of its many associations: churches etc. In a democratic society there is a tradition of democratic thought, the content of which is at least familiar and intelligible to the educated common sense of citizens generally. Society’s main institutions, and their accepted forms of interpretation, are seen as a fund of implicitly shared ideas and principles.” (PL, p. 14 – 16)

In other words, not only must the principles of justice that govern the social, economic and political structures of society be restricted to the domain of the political, but the arguments used to defend and justify them must belong to the domain of public reason – that is, modes of argument, proof and evidence affirmed by the plurality of citizens holding their diverse comprehensive doctrines. One major reason for this is the basic principle of liberal legitimacy, that holds that “coercive power is legitimately exercisable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” (PL, p. 217) And this, in turn, implies that, because given the fact of reasonable pluralism, a public and shared basis of justification that applies to comprehensive doctrines is lacking in the public culture of a democratic society… reasonable persons will think it unreasonable to use political power to repress comprehensive views that are not unreasonable, though different.”  (PL, p. 61)

In other words, as Dworkin puts it in this essay (and this chapter), the basis of political liberalism is a refusal to impose the majority’s idea of the good upon all of society, and allow everyone the freedom to pursue their own conceptions of the good (as opposed to perfectionism, which allows the State to choose one vision of the good and enforce it through law).

Let us now apply these abstract ideas. While political liberalism is based upon the idea of remaining neutral between competing visions of the good, and restricting the principles of justice and coercion to the political, it is also a simple fact that a majority of a polity’s laws go beyond the narrowly political sphere, and enact the moral sentiments of the majority. Often, then, obedience to such laws would be in conflict with other communities’ pursuit of the good, as they see it. Insofar as such pursuit does not clash with the basic liberal idea of society as a system of cooperation between free and equal citizens, political liberalism such communities should be permitted to follow their own vision of the good. To put the matter concretely: political liberalism would not grant minority groups exceptions from following basic criminal laws against, for instance, murder and violence, but it would – to take a Rawlsian example – grant them exceptions from compulsory public education (insofar as their own system of education did not violate the basic liberal principle mentioned above). The famous case in this context is Wisconin v. Yoder, where the US Supreme Court permitted the Amish community to homeschool its children, consistent with its own vision of what the ideal education should be, after confirming that the Amish system was not itself in violation of the principles of liberal citizenship.

The claim of the exclusionary covenant in Zoroastrian Cooperative to not just validity (contra legitimate public policy concerns), but actual judicial enforcement (contra the unimpeachable leal reasoning of Shelley v. Kramer) must surely rest upon this basic idea: insofar as a community believes that the survival of its own set of cultural values qua community depends on its members – and only its members – living together and in proximity with each other (and not upon a politically illiberal conception of race/cultural superiority, the eradication of which is the whole point of Article 15), the principles of Article 19(1)(c) and Article 29 are attracted, and the contrary non-discrimination principle of Article 15 is not. In such cases, the exclusionary covenant is both valid, and may be judicially enforced. Of course, the Court must look into whether the claim in question is actually justified on fact.

What I hope this demonstrates is that if Zoroastrian Cooperative is correct, then its very correctness, grounded in ideas of political liberalism, restricts its scope of operation to narrow sets of facts akin to the very facts of that case. It is not a general precedent for the validity and enforceability of exclusionary covenants (it would not, for instance, legitimate exclusionary covenants against Dalits, or Muslims, or women). As to enforceability, as I have argued before, Shelley v. Kramer applies squarely to India, and ought to be followed – the judiciary, as one wing of the State, must not enforce covenants that, had they been an instance of State action, would have failed an Article 15 test. As to validity, in the next – and last – post in this series, I shall analyze the impact of IMA v. UoI upon that very question.

** My thanks to V. Niranjan for clarifying this point.

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Filed under Exclusionary/Restrictive Covenants, Non-discrimination, Political Liberalism, Political Theory