The Supreme Court’s Madhya Pradesh Government Formation Judgment – II: On the Powers of the Governor [Guest Post]

[Editor’s 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 a former 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.]

---

[This is the second in a three-part series examining the Supreme Court’s judgment in Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh and Ors. This is a guest post by Anmol Jain.]

---

Recently, the Supreme Court delivered a reasoned order affirming its directions dated March 19, 2020, where it had directed the convening of a session of the Madhya Pradesh Legislative Assembly for deliberation on a single agenda: ‘whether the government of the incumbent Chief Minister continues to enjoy the confidence of the House.’

To summarize the backdrop of the judgment in a very brief manner: on March 14, 2020, the Governor addressed a letter to the Chief Minister, directing the holding of a trust vote on the floor of the assembly on March 16 immediately after his speech. When the assembly convened on the 16^th, the trust vote did not take place and the assembly was adjourned till March 26 on account of COVID-19 outbreak. The Chief Minister justified this by stating that first, the directions issued by the Governor fell under the exclusive domain of the Speaker of the Legislative Assembly; and second, any message of the Governor to the Legislative Assembly must abide by Article 163 of the Constitution, which mandates the Governor to act under the aid and advice of the Council of Ministers. The Governor responded with no change in his stance and directed the Chief Minister to conduct a floor test on March 17.

In this light, the prime question before the Supreme Court was whether the Governor is empowered to issue a direction to the Chief Minister to hold a floor test and prove trust in his government. The Supreme Court responded in affirmative and found the discretionary powers under Article 163 of the Constitution to be the source. The Court also relied upon the decisions in S.R. Bommai and Nabam Rebia to reach its conclusions. In this post, I shall argue against the Supreme Court’s interpretation of Article 163, and show that its reliance on precedent was misplaced.

The Correct Reading of Article 163’s Discretionary Powers

To begin with, Article 163 reads as follows:

(1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion …

After examining various speeches of the Constituent Assembly Debates – and the final wording of the Article – the Court concluded that ‘[t]he Constituent Assembly thus decided to vest the office of the Governor with certain discretionary powers under the Constitution’, without highlighting the limits of such discretion. This allowed the Court to observe that the scope of the discretion included the power to direct the government to hold a floor test when the Governor was satisfied that the government did not enjoy the confidence of the House. The Court based this upon the collective responsibility of the Council of Ministers to the House, and the obligation to ensure that the House fulfils its function to observe oversight over the affairs of the State:

In envisioning the role of the Governor as a constitutional statesman, care must be taken in course of interpretation to ensure that the balance of power which was envisaged by the Constitution between the executive and the legislature is maintained by the gubernatorial office.

While I shall comment later on the whether the Office of the Governor is apt for participating in the oversight function of the Government by directing a trust vote, the focus here is whether the Court was correct in its reading of the discretionary powers of the Governor. I suggest that it was not.

When the discussion on Article 143 (now 163) of the Draft Constitution was in place, Mr. H.V. Kamath moved an amendment to discard the clause conferring discretionary powers upon the Governor. He justified this amendment on two grounds: first, that the similarly envisaged Office of the President did not have such discretionary powers; and second, that after it was decided that the Office of the Governor would be a nominated post and not an elected one, then ‘it would be wrong in principle and contrary to the tenets and principles of Constitutional Government’ to have such discretionary powers. Mr. Kamath, as well as other members like Rohini Kumar Chaudhury, were here fearful of the past incidents where the Governors had utilized their powers to unsettle democratically elected governments.

The Court relied upon the fact that Mr. Kamath’s amendment was not accepted in an up-down vote to hold that there was no specific limitation of the Governor’s discretion that flowed from the text of Article 163. However, in the Constituent Assembly itself, T.T. Krishnamachari immediately clarified the true scope and meaning of the clause and his statement must be quoted in full for the necessary understanding of Article 163:

Sir, it is no doubt true, that certain words from this Article may be removed, namely, those which refer to the exercise by the Governor of his functions where he has to use his discretion irrespective of the advice tendered by his Ministers. Actually, I think this is more by way of a safeguard, because there are specific provisions in this Draft Constitution which occur subsequently where the Governor is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the idea underlying it. One is to make a mention of this exception in this Article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the Articles that occur subsequently, or to leave out any mention of this power here and only state it in the appropriate Article. The former method has been followed. Here the general proposition is stated that the Governor has normally to act on the advice of his Ministers except in so far as the exercise of his discretions covered by those Articles in the Constitution in which he is specifically empowered to act in his discretion. So long as there are Articles occurring subsequently in the Constitution where he is asked to act in his discretion, which completely cover all cases of departure from the normal practice to which I see my honourable Friend Mr. Kamath has no objection, I may refer to Article 188, I see no harm in the provision in this Article being as it is. It happens that this House decides that in all the subsequent Articles, the discretionary power should not be there, as it may conceivably do, this particular provision will be of no use and will fall into desuetude.

This was not the view of a single member of the Assembly, but was supported by various other members such as B.M. Gupta, Alladi Krishnaswami Ayyar and Shibban Lal Saxena. Therefore, the mention of discretionary powers was merely to indicate those provisions of the Constitution wherein the Governor was explicitly vested with discretionary powers to act and Article 163 (or 143 of the Draft Constitution) could never be utilized by the Governor to justify any other action performed without the aid and advice of the government, including the direction to call for a trust vote on the floor of the assembly. The statement by Dr B.R. Ambedkar shall support this claim beyond any doubt:

“Except in so far as he is by or under this Constitution,” those are the words. If the words were “except whenever he thinks that he should exercise this power of discretion against the wishes or against the advice of the ministers”, then I think the criticism made by my honourable Friend Pandit Kunzru would have been valid. The clause is a very limited clause; it says: “except in so far as he is by or under this Constitution”. Therefore, Article 143 will have to be read in conjunction with such other Articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my honourable Friend, Pandit Kunzru.”

Thus, it becomes clear that the Governor cannot invoke his authority under Article 163 to direct the Chief Minister to prove the trust of the legislative assembly in his Government. But in view of the interpretation provided by the Supreme Court, it seems that Mr. H.N. Kunzru was prophetic when he argued in support of Mr. Kamath’s amendment by stating that retention of the clause granting discretionary powers may give rise to misapprehensions regarding the true scope of Governor’s powers.

The Misplaced Reliance on Bommai and Nabam Rebia

The Court placed huge reliance on two precedents while coming to its conclusions, both of which, I argue, are wrongly read. The court first referred to the decision in Bommai, where the Governor the State of Karnataka, after being satisfied that the incumbent state government had lost its majority in the House, sent a report to the President recommending for the imposition of President’s rule. At the time, the Supreme Court had held the action of the Governor as unconstitutional by recognizing that even minority governments can hold the trust of the House. It stated that it is not within the Governor’s powers to decide whether the government holds the trust of the House, as that ‘is an objective fact capable of being established on the floor of the House’. The Court opined as follow:

Where the Governor is satisfied by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest time possible.

This was quoted with approval by the Court in the Madhya Pradesh Assembly case to buttress its view that the Governor can order for the floor test in the Assembly. I argue that the Court wrongly construed the opinion in Bommai. First, In Bommai, there were no arguments as to whether it is within the powers of the Governor to direct the Chief Minister to prove hold a trust vote and thus, these observations cannot be deemed as binding ratio. Second, these observations merely tells us that whenever the Governor believes that the government has lost the confidence of the House, he must validate this fact through a trust vote in the assembly and not through his own assessment. It leaves open the question as to the process through which such trust vote must take place.

The reading of the Constituent Assembly debates proves that the Governor cannot direct the trust vote to take place unless he acts with the aid and advice of the Council of Ministers while issuing such directions. The other mechanism, as also argued by counsel representing the incumbents of the MP Assembly, is the moving of a no-confidence motion in the House. Unless such motion is moved – which was indeed not moved, as recorded by the Court – the government must be under no obligation to face the trust vote.

One might here argue that allowing the trust vote to take place only after a no-confidence motion is moved would lead to certain constitutionally unwarranted consequences, such as stay of the government for a long time in Office even when it has lost the confidence of the House (for instance, when the House is not in session, effectively disallowing the opposition to move a no-confidence motion). In such scenarios, the observation of the Supreme Court in Nabam Rebia becomes relevant, where it had stated that:

The Chief Minister and his Council of Ministers lose their right to aid and advise the Governor, to summon or prorogue or dissolve the House, when the issue of the Government’s support by a majority of the Members of the House, has been rendered debatable. … And in such a situation, if there is a non-confidence motion against the Chief Minister, who instead of facing the Assembly, advises the Governor to prorogue or dissolve the Assembly, the Governor need not accept such advice.

 

Therefore, when the Assembly is in session, then the process of holding a trust vote must begin with a no-confidence motion, and when the assembly is not in session, then still, the no-confidence motion remains significant for initiating the process, and based on this motion, the Governor is empowered to act even against the aid and advice of the Council of Ministers.

However, the Court underplayed the significance of no-confidence motion and relied on another excerpt from Nabam Rebia, where it was stated that ‘[i]n a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test.’ This allowed the Court to conclude that whenever the Governor has reasons to believe that the government has lost confidence of the House, ‘constitutional propriety requires that the issue be resolved by calling for a floor test.’ This, I argue, is an unjustifiable position.

Governor as a check on the Council of Ministers?

The role of the Governor is envisaged as a de jure head of the executive government, which functions on the aid and advice of the de facto head of the executive government, the Chief Minister, and his Council of Ministers. It is merely a titular position, with very limited authority to act independently. Therefore, the argument of the Court that this gubernatorial office helps in ensuring that necessary checks and balances remain in place is, though to some extent is correct – but not in the manner in which it was interpreted by the Court. The Court noted, at para 44, that ‘the Constitution recognises that the Governor does possess a power inhering in the office to monitor that the elected government continues to possess the confidence of the Legislative Assembly.’ I believe that the it is proper for the legislature to exercise the checks and balances functions, with the scope of the Governor’s powers to be merely facilitating the legislature. Given the fact that the position of the Governor is nominated, enhancing the powers of the Governor then necessarily leads to increased political disruptions in the working of democratically elected governments. Thus, I believe that the Court’s attempt to first find the source of Governor’s power in Article 163 and then justify it though the checks and balances argument was contrary to the structure of democracy envisaged in the Constitution.

How to Read the Constituent Assembly Debates – III

(Part One)

(Part Two)

—

On the 4th of November, Ambedkar moved the Draft Constitution for consideration in the Constituent Assembly. For the next one year, over four separate sittings, the Assembly would engage in a detailed and impassioned debate of each clause of the Draft Constitution [“the Second Reading“]. These four sessions (contained in Volumes VII – X of the CADs, spanning November 1948 – Jan 1949, May – June 1949, August – September 1949, and October 1949) are perhaps the heart and soul of the Debates: for the first time, the Members had the full text of the Draft Constitution before them, and were able to engage with it holistically, instead of piecemeal.

As discussed in the previous post, the Draft Constitution comprised of the Drafting Committee’s February 1948 Draft, and, placed alongside it, the proposed Amendments that the Assembly had received between February and October 1948, and agreed to sponsor. The document that the members of the Assembly had before them in November 1948 is not available in Shiva Rao and – to the best of my knowledge – it is not available online. Consequently, the best way to read this portion of the drafting is as follows: The Drafting Committee’s Draft Constitution is in Shiva Rao, Volume 3, pp. 509 – 681. This has to be kept by one’s side when reading the Volume VII – X debates, as this was the basic document that the Members had before them. For most of the Debates, this will suffice.

However, at places where Ambedkar mentions that he is moving an amendment, it refers to the amendments accepted by the Drafting Committee are part of “Comments and Suggestions on the Draft Constitution”, Shiva Rao, Volume 4, pp. 3 – 415. This Section – as discussed in the previous post, contains a number of proposed amendments, many of which were not accepted. However, it is easy to locate the ones that were, because after each article, “Drafting Committee’s Decision” is in bold letters. In sum, therefore, when you’re reading Volumes VII – X of the CADs, and you come across a mention of an amendment that the Drafting Committee has already agreed to, match the article being debated with the article in the Draft Constitution (Vol. 3, see above), and then turn to the pages dealing with that article in “Comments and Suggestions” (Vol. 4, see above). This will give you as complete a sense as possible of what exactly was going on at this most crucial time of the framing.

The fundamental rights and directive principles were among the first elements of the Constitution to be discussed, and they occupy a significant part of Volume VII (they were predominantly discussed in November and early December 1948). Here you have the arguments about whether the Constitution should have a “due process clause”, debates over the scope of the restrictions upon free speech and association, and intense disagreement over minority (especially linguistic) rights. Some of the more controversial articles were “held over”, and would be discussed again later in the year (interestingly, a privacy clause was almost snuck into the draft, but was ultimately dropped). The end of this phase also saw the introduction of the notorious “preventive detention clause” (Article 15-A in the draft Constitution, and Article 22 now), which Ambedkar brought in to compensate for the loss of due process, but which met with bitter opposition from critics who felt that it didn’t accomplish nearly enough. This provision was debated on 15th and 16th September, 1949.

Let us call this period, then, Constituent Assembly: Phase Two (November 1948 – October 1949). Mercifully, this one is not very complex to parse:

The Second Reading of the Draft Constitution by the Constituent Assembly, and the adoption of the Draft Articles.

By 17th October 1949, the Constituent Assembly had finished the second reading. The Draft Constitution was then sent back to the Drafting Committee to take into account the changes and modifications made by the Assembly, and finalise the draft into one consistent and coherent document (essentially, to “clean it up”). The Drafting Committee finished this task by November 3, 1949, and forwarded the finalised draft to the President of the Assembly (Shiva Rao, Vol. 4, pp. 745 – 932). This period is Committee Drafting: Phase Three (October 1949), and again, is simple:

Drafting Committee scrutinises and finalises the Draft Constitution.

The Constituent Assembly met again from 14th to 26th November, 1949 (Vol. XI). This session can be divided into two phases. The first was the “Third Reading“, where the Drafting Committees changes were debated and adopted (this happened from 14th to 16th November, 1949). To understand the proceedings, read the debates alongside the Drafting Committee’s draft Constitution (Shiva Rao, Vol. 4, pp. 745 – 932).

Then, the Constitution as a whole was put up for adoption, and members offered their last sets of comments on the Constitution as a whole. For me, these last few days – November 17 – November 26, 1949 – make for the most fascinating reading. The members of the Constituent Assembly had their last opportunity to make their voice heard, and they did not hold back: the speeches were passionate, critical, and unsparing (some, like Maulana Hasrat Mohani and Damodar Swarup, rejected the Constitution altogether). The criticisms were both broad-ranging and granular. They were prescient as well: many of the issues raised in November 1949 resonate even today. At the abstract level, the Drafting Committee was trenchantly criticised for its “eclectic” borrowing from different Constitutions, for its treatment of fundamental rights, for incorporating a heavy bias towards the centre in a supposedly federal Constitution, for making no effective provisions for decentralisation of power, for failing to incorporate Gandhian principles, for failing to adequately separate the executive from the judiciary, and so on. At the more concrete level, issues such as nominated members in the cabinet, preventive detention, and the discretionary powers of the Governors all came in for criticism. Other members offered defences as well, making for a lively debate and exchange of views.

On 25th November, Ambedkar gave his closing remarks (this is the famous “grammar of anarchy” speech), and on 26th November, the President of the Constituent Assembly, Rajendra Prasad, delivered the concluding address, and the Constitution was adopted. This was Constituent Assembly: Phase Three (November 1949):

Third reading –> Final debate on the Constitution –> Adoption (26th November, 1949).

The Constituent Assembly reconvened one final time on 24th January, 1950, for all the members to sign the Constitution. This brought proceedings to an end, and the Assembly was adjourned sine die. The Constitution came into force on 26th January, 1950. 

—

To sum up: The framing of India’s Constitution was a mammoth task. The Constituent Assembly held eleven sessions, over a period of three years, and debated the Constitution for three separate rounds. The work of negotiation, framing, and drafting was carried out by multiple committees, culminating in the work of the seven-member Drafting Committee. Getting a handle on such a massive project, therefore, requires a systematic approach. Over the course of the last three essays, I have attempted to outline such an approach, by reading together the proceedings of the Constituent Assembly, and the work of the Committees, a large part of which has been reproduced in B. Shiva Rao’s book.

I have suggested breaking up the drafting process into six distinct – but interlocking parts: three phases of “Committee Drafting” and three phrases of “Constituent Assembly Debates”, which alternate with each other. Even this, however, is very difficult to wrap one’s head around: so I’ve suggested, further, a thematic approach, by taking the fundamental rights and Directive Principles chapter as an example. A good starting point – as outlined in Part I of this series – is to go back to the Sub-Committees that were constituted in early 1947 – the Fundamental Rights Sub-Committee, the Minorities Sub-Committee, the Union Powers Sub-Committee, and the Excluded Areas Sub-Committee. With this starting point, one can then trace how a particular set of provisions (dealing with fundamental rights, minority protection, structures of governance, the Fifth/Sixth Schedule etc.) – wound their way through the three-year long process. The blueprint outlined in these three posts can be used, keeping in mind, of course, that different parts of the Constitution went through different drafting processes outside the Assembly.

A few caveats: even the Constituent Assembly Debates plus Shiva Rao do not give you the entire picture. Shiva Rao, as we have seen, does not contain the entire set of Committee Proceedings, and – as members of the Constituent Assembly frequently observed – many particularly controversial provisions were ultimately settled even outside the Committees. To get the full picture, therefore, you’d need access to the private correspondence of many of the prominent figures in the Assembly – and even that would leave gaps. I’ve limited myself to the Debates and Shiva Rao, however, because the former are freely available online, and the latter can be accessed with some effort in a library (or purchased – admittedly – at significant expense). This approach, I feel, provides a reasonable picture of the framing, while also remaining accessible to people who lack access to historical archives (i.e., most of us).

Readers interested in following up can also refer to the excellent CLPR website.

—

While moving the Objectives Resolution, Nehru famously said that “words can never capture the magic of the human spirit.” If there is one place, however, where they come close to doing so, it is in the Constituent Assembly Debates. As you go through the debates, the passionate arguments on principles, the granular discussions on grammar and form, and everything in between, it’s easy to forget the circumstances in which the Assembly carried on its work: the departure of the Muslim League, Independence, Partition, communal violence, the integration of the princely states, the war with Pakistan, and the unimaginable challenge of framing a democratic Constitution for a nation as vast, as diverse, as culturally and linguistically plural as India, with the added task of remedying centuries of political as well as social injustice. But when you remember all of that, you feel a sense of awe at the manner in which the Assembly conducted itself, and the manner in which it saw its task through to the end. As K.G. Kannabiran wrote, a Constitution at the culmination of a freedom struggle signifies “emotion recollected in tranquility.” I can think of no better description for the Indian Constituent Assembly.

I hope the brief outline in these three posts will help in capturing some of the magic of human spirit that went into the framing of the Indian Constitution.

How to Read the Constituent Assembly Debates – II

(Part I is available here.)

—

By the end of August 1947, the Constituent Assembly had debated a significant part of the proposed Constitution for independent India. The actual grant of independence (earlier than expected) and all that it entailed, meant that the Assembly would not hold sustained sittings for more than a year. The action, therefore, moved backstage. On the basis of the draft texts debated and adopted by the Constituent Assembly in its first round of substantive sittings, the Office of the Assembly, under the direction of the Constitutional Adviser B.N. Rau, was tasked with drafting the constitutional text. This was significant, because thus far, the Assembly had dealt with issues piecemeal, considering texts sent in by various committees on various subjects. Rau’s task was to pull this all together, and come up with a single constitutional text.

In its session on 29th August 1947, the Constituent Assembly then nominated a seven-member Drafting Committee. The Drafting Committee’s remit was to scrutinise B.N. Rau’s text – again on the basis of the debates in the Assembly – and finalise the draft. This draft, then, would come back to the Assembly for ratification.

B.N. Rau prepared the draft Constitution by October 1947 (Shiva Rao, Vol. 3, pp. 3 – 197). The draft contained marginal notes that specified the origins of various provisions (e.g., whether it had been borrowed from the American Constitution, or the Irish, or the Government of India Act, etc.). Provisions that had not yet been adopted by the Constituent Assembly were italicised, and at times, Rau made some additions (a particularly momentous insertion was that of the word “personal” before “liberty” in the “right to life and liberty”, which would become the foundation of the famous Gopalan-Maneka Gandhi debate). The draft Constitution, therefore, is best read as a culmination of the Constituent Assembly Debates that took place from May to August 1947. Rau appended a brief postscript, with explanatory notes to some of the clauses (Shiva Rao, Vol. 3, pp. 197 – 205) which reveal, among other things, how deeply American judicial history influenced some of the choices that he made. K.M. Munshi, Alladi Krishnaswamy Ayyar and D.P. Khaitan (all members of the drafting committee) also added written comments (Shiva Rao, Vol. 3, pp. 205 – 216).

The Drafting Committee, under the Chairmanship of B.R. Ambedkar, worked from October 27, 1947 to February 21, 1948. The minutes of its proceedings can be found in Shiva Rao, Vol. 3, pp. 315 – 506. To understand the proceedings of the Drafting Committee, and the nature of the choices they made, the minutes must be read alongside B.N. Rau’s constitutional text (which was what the Committee was considering). As we saw above, both sets of documents are conveniently available in Volume 3 of Shiva Rao, and therefore, the activity only requires a regular amount of page-turning. One major disadvantage of the Drafting Committee minutes – as opposed to the Minutes of the Sub-Committee – is their sketchy nature. With a few exceptions (such as the justification for adding “personal” to “liberty”), these minutes are, essentially, catalogues of the decisions taken by the Drafting Committee, but without any account of the discussions that went into them. For example, the fundamental freedoms clause was redrafted almost ten times in the Drafting Committee – clearly indicating the amount of care and thought the framers put into each word of the Constitution – but we are given no indication about what motivated these changes.

While the Drafting Committee was sitting, B.N. Rau traveled to USA, Canada, Ireland, and England, to consult with constitutional experts, and returned on December 2, 1947. His report and recommendations for further changes to the Constitution can be found in Shiva Rao, Vol. 3, pp. 217 – 234.

On 21 February 1948, the Drafting Committee submitted its Draft Constitution – consisting of 315 articles and 8 schedules – to the President of the Constituent Assembly (Shiva Rao, Vol. 3, pages 510 – 677).  As Ambedkar explained in his letter to the President, wherever the Drafting Committee had felt it necessary to depart from the decisions of the Constituent Assembly, it had underlined the relevant provision, and added a footnote. Ambedkar also summarised the significant changes that the Committee had elected to make (Ambedkar’s letter, pp. 509 – 517). In my view, therefore, the Drafting Committee’s draft Constitution is best read beside B.N. Rau’s text, which was the template from which it worked; the departures are cleanly visible (for example, the Preamble, the citizenship clauses, the entire Directive Principles chapter, and even specific words, such as replacing “particular” with “backward” as a qualifying description of “classes”, in the reservation provision (see p. 521). Perhaps the most significant departure, as far as fundamental rights are concerned, is the substitution of “due process” with “procedural established by law”, in the phrase “no person shall be deprived of his life or personal liberty without due process of law.” It is, of course, famously known that this came about as a result of B.N. Rau’s meeting with Felix Frankfurter, and the American judge’s strongly-worded advice that India avoid a due process clause in the Constitution.

The Draft Constitution was published on 26 February 1948, and opened up for suggestions and feedback from the Constituent Assembly, the provincial governments, as well as the general public. From March through October 1948, a large number of comments were sent in on every aspect of the Constitution. The range of commentators – from Constituent Assembly members to provincial legislatures, to bar associations, to private groups, and to individuals – is quite extensive.  Specific suggestions that were examined in some detail by the Drafting Committee are collated in Shiva Rao, Vol. 4, pp. 3 – 381. For each Article of the Constitution, first the proposals are set out, followed by the constitutional advisor’s written responses to them (“Note: ____“), the Drafting Committee’s response, and finally, the Drafting Committee’s decision. As the text that the amendments were responding to was the Drafting Committee’s text, this part needs to be read alongside the 26th February Draft Constitution, the text of which is found in Vol. 3 of Shiva Rao, as indicated above.

As with every other phase of the framing, here too are revealed some fascinating aspects of the framers’ thinking. For example, B. Pittabhi Sitaramayya and some other members of the Constituent Assembly wanted the fraternity clause of the Preamble to read as follows: “Fraternity assuring unity of the Nation and the dignity of the individual.” B.N. Rau’s response was that “the reason for putting the dignity of the individual first was that unless the dignity of the individual is assured, the nation cannot be united.” The draft clause was kept as it is – one among several instances where the framers’ commitment to placing the individual at the heart of the new constitutional order shines through. It also shows how certain recent judicial articulations of “fraternity” – as some kind of overarching collective obligation, as in the criminal defamation judgment – get things completely wrong.

This part of Shiva Rao, however, is not strictly chronological. The Drafting Committee held sessions on March 23, 24 and 27, 1948, to consider the suggestions they had received until then (Shiva Rao, Vol. 4, pp. 392 – 408). The President of the Constituent Assembly also constituted a larger “Special Committee” to look into the suggestions. This Committee met on April 10 and 11 (Shiva Rao, Vol. 4, pp. 408 – 415). Suggestions continued to come in until October, and it was on the basis of this complete record that the Drafting Committee took its final decisions on the wording of the Articles (this part of the record is not in Shiva Rao). However, these subsequent events all form part of Shiva Rao’s “Comments and Suggestions” section, indicated above. This phase of the framing, therefore, should be read keeping in mind that – for reasons of practicality – it has not been arranged chronologically.

By the end of October 1948, the Drafting Committee was ready to forward the Draft Constitution to the Constituent Assembly. As the Chairman of the Drafting Committee, Ambedkar wrote a letter to the President of the Constituent Assembly, dated October 26, 1948 (Shiva Rao, Vol. 4, pp. 415 – 416). Along with the letter, he enclosed a reprint of the Draft Constitution, with an added column at places where the Drafting Committee had accepted – and decided to sponsor – an amendment that has been submitted to it between February – October 1948.

This, then, was Episode III. Let us call it Committee Drafting: Phase Two (August 1947 – October 1948). This phase can be summed up as follows:

Appointment of Drafting Committee – B.N. Rau (Constitutional Advisor) prepares the first Draft Constitution on the basis of the Constituent Assembly’s “First Reading” – Drafting Committee scrutinises and modifies the Draft Constitution – Drafting Committee Publishes the Draft Constitution – Feedback, comments and amendments received from institutions and the public – Drafting Committee meets to consider feedback – President of the Constituent Assembly appoints a larger, Special Committee to also consider the issue – Special Committee submits suggestions and amendments – Drafting Committee, on the basis of the complete record, finalises the draft text, and decides to sponsor some amendments – Draft text along with sponsored amendments forwarded to the Constituent Assembly for a “Second Reading.”

(To be Contd.)

How to read the Constituent Assembly Debates – I

For any student of the Indian Constitution, the Constituent Assembly Debates are both invaluable and indispensable. They are, however, difficult to read, as well as difficult to relate to the final constitutional text. This is not simply because of their volume, but because a significant part of the actual drafting took place outside the proceedings of the Assembly, and in Committees. A bare reading of the Debates, therefore, can often be confusing: the language of the draft articles changes, as does their numbering. The Debates frequently refer back to what happened in the Committees. Trying to understand the Debates without the Committee proceedings is bit like trying to swim with one arm and one leg.

Fortunately, the Committee proceedings are available in B. Shiva Rao’s six-volume edited collection titled The Framing of India’s Constitution: Select Documents. However, much like the Debates, the Select Documents cannot be read as self-contained volumes. This is because, as the Assembly drew on what was happening in Committee, the Committees discussed and revised the drafts that they received from the Assembly. A holistic understanding of the framing of India’s Constitution therefore depends on a (somewhat) careful exercise that involves reading together the debates and the committee proceedings. This process is equally important if you’re trying to trace the history of a particular clause or set of clauses. The various iterations of a draft clause can shed significant light on the best way to interpret it within the constitutional scheme. For example, Article 17 of the Constitution, which prohibits untouchability, places the word “untouchability” within quotes. This seemingly innocuous choice of form actually has a significant history, a history that becomes clear when we read the multiple rounds of debates – in Committee and in the Assembly – around the untouchability clause. In fact, the use of quotes around “untouchability”, when read in the context of the drafting history, go some way towards us telling us how Article 17 is to be understood in 2018.

What follows is a brief guide to reading the Constituent Assembly Debates, taking the example of the Fundamental Rights chapter (the approach to other parts of the Constitution will be broadly similar).

—

Volume 1 of Shiva Rao’s collection contains various constitutional documents that Indian nationalists came up with through the course of the early 20th century, and the build-up to the Constituent Assembly (including its establishment). That is interesting enough in its own right, but for the purposes of this exercise, it can be ignored. The action really begins in December 1946 and January 1947, when the Constituent Assembly held its first set of sittings. Volumes I and II of the Constituent Assembly Debates (all volumes are available online) cover this period. Most of it pertains to administrative details, but the highlight is the Objectives Resolution (moved by Nehru on December 13, 1946), which was meant to be a blueprint for the Constitution. Those minded to do so can wade through the debates around the Resolution; Shiva Rao’s documents have the relevant portions of Nehru’s speech, and Radhakrishnan’s speech commending the Resolution to the Assembly (Volume 2, pages 3 to 18).

After 25th January 1947, the Assembly had a three-month recess, and reconvened on 28th April. In the meantime, in accordance with the Cabinet Mission Statement (under whose auspices the Assembly was Constituted), an Advisory Committee was set up to consider the questions of fundamental rights, minority rights, and the administration of certain frontier areas. Sardar Patel was elected the chairperson of the Advisory Committee, and the Advisory Committee was then further divided into Sub-Committees to consider, inter alia, the issue of fundamental rights (Shiva Rao, Volume 2, pages 56 – 63). The Fundamental Rights Sub-Committee then had three sittings during which drafts of fundamental rights were written, circulated, and debated. The Sub-Committee produced its report on April 16, 1947 (with notes of dissent), and it was this Report that went to the Advisory Committee.  After further debate, the Advisory Committee submitted an (interim) report to the Constituent Assembly.

Therefore, in order to understand what it was that the Constituent Assembly discussed in its sessions from April 28 onwards, it is essential to first read the deliberations of the Fundamental Rights Sub-Committee, and the discussion of the Report in the Advisory Committee, between January and April 1947. These can be found in Shiva Rao, Volume 2, pages 21 – 176, and 210 – 292. These proceedings are somewhat complex in their own right: B.R. Ambedkar, K.M. Munshi, and Harnam Singh all produced draft bill of rights. K.T. Shah and B.N. Rau – the Constitutional Advisor – submitted notes on fundamental rights. In its three sittings in March 1947, the Fundamental Rights Sub-Committee took Munshi’s draft as its blueprint, while also discussing clauses from Ambedkar and Harnam Singh’s drafts from time to time, and referring to Rau and Shah’s work as well. At the end of its deliberations, the Sub-Committee produced an interim report on 3 April 1947, with a draft bill of rights. Members of the Sub-Committee then commented on the draft, and added notes of dissent. The Sub-Committee met on April 14 and 15, took these into account, and then produced a final report – to which the members added their final comments and notes of dissent.

This document was then forwarded to the Sub-Committee on Minorities, which was asked to comment on fundamental rights from the perspective of minorities (Shiva Rao, Volume 2, pages 199 – 209). Because of the paucity of time before the Advisory Committee met, the Sub-Committee on Minorities held a somewhat rushed set of meetings between April 17 to 19, and submitted an interim report. This report, along with the final report of the Sub-Committee on Fundamental Rights, was sent to the larger Advisory Committee (consisting of seventy-two members), which met on April 21 and 22, 1947 (Shiva Rao, Volume 2, pages 210 – 292).

The Advisory Committee debated the draft bill of rights extensively. Proceedings in the Advisory Committee naturally referred to Clauses by their number, so when you read the Advisory Committee proceedings, you have to keep turning the pages and referring back to the Sub-Committee’s final report (Shiva Rao, Volume 2, pages 169 – 176) to connect the debate with the text of the provision that is being debated.  The Advisory Committee then came up with an Interim Report on April 23. Sardar Patel – the Chairperson of the Advisory Committee – forwarded this to the Constituent Assembly, along with the draft bill of rights hammered out in the Advisory Committee, for the sessions beginning on April 28, 1947.

As we can see, therefore, before the Constituent Assembly even met, three Committees, over a period of three months, had met, debated, and drafted a detailed bill of rights. In the interests of clarity, let us call this Committee Drafting: Phase One (February – April 1947). To sum up Phase One:

Constituent Assembly appoints Advisory Committee (seventy-odd members) —> Advisory Committee appoints Fundamental Rights Sub-Committee —-> Drafts and Notes on Fundamental Rights produced and sent to the Sub-Committee –> Sub-Committee deliberates and produces and Interim Report and Draft Bill of Rights —-> Comments and Notes of Dissent by Members —–> Fundamental Rights Sub-Committee Final Report —-> Comments and Notes of Dissent by Members —–> Final Report forwarded to Minorities Sub-Committee to examine from the perspective of Minorities —-> Interim Report of the Minorities Sub Committee —–> Both reports forwarded to the larger Advisory Committee —-> Advisory Committee deliberates —–> Advisory Committee produces an interim report and a modified draft bill of rights —–> Advisory Committee Interim Report and Draft Bill of Rights forwarded to the Constituent Assembly for consideration.

Many important things happened in the first phase. It was here that the enduring distinction between “justiciable” and “non-justiciable” rights (Directive Principles) was first mooted, much to the consternation of K.T. Shah. It was in the Sub-Committee that Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur argued strongly for a right to inter-religious marriages and to a uniform civil code (with Ambedkar’s support), but were voted down. It was in the Advisory Committee that the right to privacy (secrecy of correspondence and prohibition of unreasonable searches and seizures) was dropped from the draft bill of rights, as was the right to vote. Here you find Ambedkar’s eloquent arguments for the link between constitutional rights and the economic structure, and K.T. Shah’s radical proposals to make remuneration for housework a fundamental right. In short, endlessly fascinating stuff. The debates on citizenship – with the framers’ near-unanimous rejection of racial criteria for citizenship – are particularly relevant for the present times. And another interesting aspect of the debates is that they were conducted before Independence, Partition, and the integration of the princely states. So you have many instances where the framers refer to the possibility of the Muslim League “coming into the Assembly”, how to deal with princely states who may want to maintain a monarchical system of government, and how to frame a fundamental rights chapter in the shadow of the fact that the country for which it is being framed is not yet in existence, and nobody knows what it may look like.

Because of the paucity of time, the Advisory Committee finally submitted what it called an “Interim Report on Fundamental Rights”, along with a draft bill of rights, and requested the Constituent Assembly for an extension of time to submit a final report. This was granted. The Assembly then took up the draft Bill of Rights for discussion starting April 29, 1947 (Vol. III of the Constituent Assembly Debates, available online – use the “Complete HTML file” option to view day-to-day proceedings). The debates were lively: as Patel (the chairperson of the  noted, more than 150 amendments were tabled).

The first set of debates spanned four full days – April 29 to May 2, 1947. A large part of the Advisory Committee’s draft Bill of Rights was accepted (for the draft bill of rights approved by the Constituent Assembly, see Shiva Rao, Vol. 2, pages 300 – 304), with various modifications. Some of the clauses that proved particularly contentious – or suffered from ambiguous drafting – were “remitted” back to the Committee (such as the clause prohibiting forced labour, where a dispute arose about whether it banned conscription as well, as well as the clause prohibiting fraudulent conversions and conversions of minors). The Advisory Committee considered these over the summer, and on August 25, it submitted a Supplementary Report to the Constituent Assembly, which contained two re-drafted clauses (primarily to do with religious instruction and admissions in schools), a recommendation to drop the prohibition on forced conversion from the list of fundamental rights, and finally, a list of non-justiciable rights, which would eventually go on to form part of the Directive Principles of State Policy (available online, bottom of page).

The Supplementary Report was taken up by the Constituent Assembly on August 30, 1947 (available online), and adopted. This ended the second phase, which we can call Constituent Assembly: Phase One (April – August 1947), and the draft bill of rights was forwarded to the Drafting Committee.

Constituent Assembly debates, modifies and adopts the Advisory Committee’s draft bill of rights – three clauses sent back to the Advisory Committee – Advisory Committee deliberates and produces a Final Report with redrafted clauses and a set of non-justiciable rights – Final Report forwarded to the Constituent Assembly – Constituent Assembly debates, modifies and adopts the Final Report – forwarded to the Drafting Committee.

The Constituent Assembly would not convene again until January 1948.

(To be Contd.)

Election Disqualifications and the Constituent Assembly Debates

On this blog, I – as well as guest essayists – have written extensively about Rajasthan and Haryana’s moves to impose educational and other restrictions upon the right to contest Panchayati Raj elections. One way or another, this issue will be resolved next week, when a two-judge bench of the Supreme Court decides the constitutional validity of Haryana’s Panchayati Raj Act (the operation of the Act has been stayed in the meantime). Recall that the Haryana Act (as amended) disqualifies people from contesting Panchayat elections if they haven’t been educated beyond Class VIII (the bar is lower for certain constituencies), if they do not have a functional toilet in their house, and if they owe arrears of electricity bills, agricultural cooperative loans, etc. Previously on this blog, we have argued that such provisions are unconstitutional on the grounds of Article 14 (equal protection of laws), 15(1) (documented disparate impact upon women), and 19(1)(a) (the freedom to vote being part of the freedom of expression). In this essay, I want to explore the framers’ ideas about suffrage, and how educational and property-based disabilities are inconsistent with those ideas.

Relying upon the Constituent Assembly Debates to advance an argument against electoral disabilities is a perilous enterprise. This is for two reasons. First, the Constitution itself seems to leave the matter of electoral qualifications to the statute. Article 84, which deals with eligibility for membership of Parliament, requires a candidate to be a citizen of India, at least 25 or 30 years 0f age (depending upon the House), and possessing “such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.” Article 102 disqualifies an individual from membership of either House if he holds a governmental office of profit, is of unsound mind, is an undischarged solvent, is a foreign citizen, or “if he is so disqualified by or under any law made by Parliament.” Part IX of the Constitution, which contains the provisions for Panchayati Raj, makes no substantial departure from this position. Article 243F states that a person may be disqualified from being chosen as a member of the Panchayat if “he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned… [or] if he is so disqualified by or under any law made by the Legislature of the State.” A combined reading of all these provisions suggests that it is open to the legislature to introduce disqualifications through legislation (such as the Representation of the People Act).

Secondly, there is a remark made by Ambedkar on the 2nd of June, 1949. Responding to an amendment made by K.T. Shah, that literacy requirements be incorporated into the Constitution, Ambedkar replied that “I think that is a matter which might as well be left to the Legislatures. If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a necessary one, I no doubt think that they will do it.” This seems to suggest that the framers (or at least, Ambedkar) believed that the powers given to Parliament under the omnibus clauses of (what became) Articles 84 and 102, included the power to prescribe literacy qualifications. 

I will argue, however, that the overall tenor of the Constituent Assembly Debates makes it clear that educational requirements go against the concept of suffrage and democracy that the framers meant to write into the Constitution. As Dworkin has correctly pointed out, there might often be a clash between the framers’ intentions about the words they were using, and what they intended the words would do – in other words, between the concepts that they laid down in the Constitution, and the concrete conceptions that they thought were the correct interpretation of those concepts. I will attempt to show that Ambedkar’s conception of suffrage and political candidature that is reflected in his comment of 2nd June 1949, is at odds with what comes out of the rest of the Debates.

Let me foreground this discussion by drawing two important distinctions about the electoral process. First: historically, voting (and concomitantly, standing for elected office) has been considered to be either a privilege (i.e., a benefit extended to you by the State in return for some service, such as fighting in the army, paying tax etc.), or a right. Secondly: the purpose of an election can either be that it is expected to return the best (or most competent) candidate to power, or it can be that the person chosen by the electors is returned to power.

These distinction are important because of the following reasons. If voting/standing for office is a mere privilege, then obviously there cannot be any antecedent claim if the legislature decided to take it away by passing a law to that effect. On this interpretation, the omnibus clauses in Articles 84 and 102 provide a carte blanche to the legislature to impose whatever disqualifications it chooses to. If, on the other hand, voting is a right, then the discretion of the lawmaker to take it away must accordingly be curbed: a law taking away a right has to pass a higher threshold of justification. Secondly, if the purpose of the election is to select the most competent candidate, then conceivably, the legislature may impose a priori disqualifications on the basis that these qualifications create a preliminary threshold of competence, ensuring that people who fall below this threshold aren’t even eligible to participate in the process (whether as electors, or as candidates). In fact, this is precisely the justification that Rajasthan and Haryana have used in defence of their laws: Rajasthan drew a link between education and accountability, for instance. On the other hand, if the purpose of suffrage is to give effect to the choice of the people, then there is no justification for limiting that choice on the assumption that by allowing everyone to contest, there is a possibility of the wrong, or less qualified candidates, being chosen.

With this in mind, let us return to the Constituent Assembly Debates. The first important thing to note is that there was a significant dispute in the Assembly over whether or not to enshrine the principle of universal suffrage into the Constitution. In his proposed amendment, H.V. Kamath noted the extent of illiteracy in the country and the dangers it presented, and expressed regret that the franchise itself had not been restricted on grounds of literacy. His amendment – which Ambedkar rejected in the quotation abstracted above – was a second-best option aimed at limiting the damage wrought by universal suffrage. For Alladi Krishnaswamy Ayyar, on the other hand, this was one of the crowning achievements of the Constitution. He noted:

“More than any other provision in the Constitution. I should think the boldest step taken by this Assembly is in the matter of universal adult suffrage with a belief in the common man and in his power to shape the future of the country.”

Subsequently, during the final debates on 23rd November 1949, he observed that “in spite of the ignorance and illiteracy of the large mass of the Indian people, the Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule and in the full belief that the introduction of democratic government on the basis of adult suffrage will bring enlightenment and promote the well-being, the standard of life, the comfort and the decent living of the common man. The principle of adult suffrage was adopted in no lighthearted mood but with the full realisation of its implications. If democracy is to be broad based and the system of governments that is to function is to have the ultimate sanction of the people as a whole, in a country where the large mass of the people are illiterate and the people owning property are so few, the introduction of any property or educational qualifications for the exercise of the franchise would be a negation of the principles of democracy… This Assembly deserves to be congratulated on adopting the principle of adult suffrage and it may be stated that never before in the history of the world has such an experiment been so boldly undertaken.”

That same day, R.V. Dhulekar also stated that “a very great achievement is adult suffrage. Every person who is twenty-one years of age, who does not possess any of the disqualifications enumerated in the Constitution, has an opportunity of rising to the Presidentship, the highest honour that this country can give. And that is a great thing.” Soon after, Frank Anthony decried what the Assembly had done, observing that “I am one of those who can only express the very sincere hope that when the next elections are fought or the elections after that and with an electorate which will be predominantly illiterate, with an electorate which will be predominantly unaware of exercising the franchise on a basis of being able to analyse political issues in a rational way, that this electorate will not be stampeded by empty slogans by meretricious shibboleths into chasing political chimeras which will not only lead to chaos but to the very destruction of the democracy which we have chosen to give them.”

What these exchanges reveals is that there was a common understanding that the Constitution had conferred universal suffrage (and, at least for Dhulekar, by extension, the right to stand for elections), both among its supporters and its opponents. As the excerpts show, opponents feared that an illiterate populace would fail to exercise its choice in the “correct” way; supporters relied upon the basic idea that democratic legitimacy is founded upon popular sanction. But whether supporter or opponent, there was consensus over what the Constitution actually said. This was reflected finally in what are now Articles 325 and 326 of the Constitution. Article 326 states that “The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election…” Article 325, by way of abundant caution, states that “no person shall be ineligible for inclusion in any such [electoral] roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.”

The phrase “shall be entitled” in Article 326 answers our first question: suffrage, under the Constitution, is a question of right, not of privilege. And the rejection of the arguments for literacy requirements along with their underlying bases as potential disqualifications (the language of Article 326 is exhaustive) answers the second question: the vision of democracy is one based not on ensuring the most “competent” candidate wins (by whatever a priori definition of “competence”), but on giving effect to the people’s choice. Obviously, prior screening out of candidates violates that principle.

But what of Articles 84 and 102, it may be asked. Does not the Constitution itself stipulate the principles of disqualification? Let us read the disqualifications of 102 more closely: holding an office of profit, unsoundness of mind, being an undischarged insolvent, and not being a citizen of India. What is common to these is that they relate not to the quality of the individual candidate, but to maintaining the integrity of the electoral process. Holding an office of profit, citizenship, unsoundness of mind and insolvency are not related to how well a candidate might perform while in elected office, but are aimed at tackling possible conflicts of interest and propensity to corruption (admittedly, unsoundness of mind is uneasily close to a candidate-based disqualification, although it can certainly be argued that there is a qualitative difference between illiteracy and unsoundness of mind). This also helps us in interpreting the omnibus clause: “if he is so disqualified by or under any law made by Parliament.” Disqualifications enacted in law must also cleave to the principle of maintaining the integrity of the electoral process (e.g., disqualification of all persons convicted of cognisable offences), but cannot be imposed simply on the basis of some a priori ideas about what makes a good or effective candidate. As Ambedkar himself noted during the debate, the purpose of putting in a few of the disqualifications into the Constitution was to provide for some “basic” principles. What I have tried to argue is that the disqualifications that the Assembly did finally put in are to be understood in the context of the two key questions I asked earlier: the nature of suffrage, and the purpose of elections. The answers that come out of a study of the Debates make the case that any further disqualifications imposed by Parliament must also be faithful to them. The restrictions under the Rajasthan and Haryana Acts manifestly fail to be: educational requirements, requirements of toilets, and of clearing existing arrears are all justified by an a priori invocation of the probably competent candidate. This goes against the principles of universal suffrage, and also, by denying the voters the exercise of their full and unconstrained choice by screening out certain candidates, it defeats the reason why the framers put in place the mechanism of elections as the bulwark of Indian democracy.

How might this be tangibly used in the constitutional challenge to the Act? One option is under the broad Article 14 argument. As held by the Supreme Court in the Sanction for Prosecution case, under Article 14, the State must not only show intelligible differentia and rational nexus, but also a legitimate purpose. We have tried to argue here that selection of the most “competent” candidate is not a legitimate purpose in the context of elections. Consequently, if the State cannot find any other justification but this, the requirements of the Act must fail Article 14 scrutiny.

—

N.B. Much of the argument here has focused upon the educational disqualification. It may be noted that the property disqualification (having a functional toilet in your house) is an even more blatant constitutional violation. In fact, on 2nd June 1949, as part of the same speech I quoted at the beginning of this essay, Ambedkar expressly stated that it was not the purpose of the omnibus clause to permit property-based disqualifications.

 

Guest Post: Women and the Constituent Assembly – II: The Framing of the Non-Discrimination Clause

Initial Drafts

The initial drafts of the equality and non-discrimination provisions were prepared by B.R.Ambedkar (B Shiva Rao Ed. “The framing of India’s Constitution- Select Documents’ Universal law publishing co. Pvt. Ltd Vol II (2004) PP 86-88) and K.M.Munshi (Vol II PP 74-75). Ambedkar’s draft referred to the ‘prohibition of disqualification inter alia on the ground of sex’ only once in respect of holding of public office or practicing of trade or calling (Vol II 84-88). The remainder of the draft provisions were gender neutral using either the words and phrases “all persons, person, public, or people (Vol II 84-88), or “all citizens or every citizen” Moreover, he did not recommend any special provisions for women or children.

However, in comparison to B.R. Ambedkar, K.M. Munshi’s draft attached more significance to gender (Vol II 74-75) in two respects;

• Calling for treatment of women at equal basis with men generally and;
• Providing justification for exceptions to the rule against sexual discrimination.

He was also less gender neutral in his approach than Ambedkar and used the words ‘women and men’ (rather than citizens). Clauses 1 and 3 of his draft are worth noting.

• All persons irrespective of…….. sex are equal before the law and are entitled to the same rights and are subject to the same duties.
• Women citizens are the equal of men citizens in all spheres of political, economic, social and cultural life and are entitled to the civil rights and subject to same civil duties unless where exception is made in such rights or duties by the law of the Union on account of ‘sex’(Vol II 74)

Ironically, he did not advocate prohibition of ‘discrimination on the ground of sex’ in respect of equal access to public places and enjoyment of equal opportunities in spheres of public employment and office of power and honour, the exercise of trade, profession or calling and exercise of franchise (Vol II 74-75). Thus, unlike Ambedkar who espoused formal equality, the draft of Munshi was a combination of paternalism and formal equality and was influenced by cultural feminism.

Based on both drafts, the sub-committee on fundamental rights produced a non-discrimination provision: draft Article 5. This Article apart from recognizing the principles of equality before law and the equal protection of the law also prohibited discrimination on the ground of sex (but not gender). The obligation of non-discrimination was not only vertical but also horizontal, bringing into its scope ‘wells, tanks, roads, schools and places of public resort’ (Vol II P 138). Constitutional adviser B. N. Rau expressed concern that,

“…. The clause as drafted would prejudicially affect the institution of separate schools, hospitals etc for women” (Vol II P 148)

The Minorities Sub-Committee, endorsing the suggestion of Rau, decided to remove ‘sex’ as one of the prohibited grounds of discrimination, so far as ‘the use of wells, tanks, roads and places of public resort’ was concerned and also excluded ‘schools’ from this clause. (Vol II P 208)

The above views of both these committees were discussed by Advisory Committee. Although there was consensus in the committee to have a strong Anti-discrimination provision, it was also felt that,

“..the drafting of a clause which would prevent discrimination and at the time would serve the practical social ends was somewhat complicated.” (Vol II P 208, P 221, 253-255)

According to the Committee the same was crucial in respect of discrimination on the ground of ‘sex’. In order, therefore to redraft the Anti-discrimination clause, yet another sub-committee consisting of Munshi, Rajgopalachari, Pannikar and Ambedkar was constituted. (Vol II P 223)

This sub-committee drafted the general nondiscrimination provision, which read:

‘The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex...’ (Vol II P 256).

However, in regard to access to trading establishments, public restaurants and hotels and use of wells, tanks and places of public resort, it omitted ‘sex’ as one of prohibited grounds of discrimination. During the debates, Rajkumari Amrit Kaur objected, arguing that this went against the basic principles of social equality. Rajgopalachari tried to defend it by pointing out,

“…in dealing with particularities, separate provision for women would be necessary and if we say that there shall be no discrimination, we will have to follow it.” (Vol II P 257)

Another member Panikkar added a new dimension to the debate by pointing out,

“..discrimination for women means discrimination against men…when you say no discrimination shall be made on the ground of sex, it also means it should not be discriminated against men...” (Vol II P 257)

However, the debate ultimately resulted in adoption of redraft of the clause suggested by Rajgopalachari, which apart from accepting the objection of Rajkumari Amrit Kaur, also had a proviso, ‘provided that nothing contained in this clause shall prevent separate provisions being made for women.’ (Vol II P 258). Draft Article 11 was then debated by Constituent Assembly on 29^th April 1947 but the discussion did not result in any material changes in the provisions dealing with discrimination on the ground of Sex. (B Shiva Rao Vol V P186-187)

The Final Wording and the Debates over the Word “Only”

This clause however was qualitatively modified along the lines of Section 87 of Charter Act, 1833 which became Section 298(1) of Govt. Of India Act 1935 by Constitutional Adviser and remained part of both the Draft Constitutions. When the I visited HANSARD to gather the legislative intention of British Parliament behind enactment of section 87 and 298, I did not find any discussion on the same. (B Shiva Rao Vol III (2004) P 7-8, P 521)

To have an idea of the changes made by Constitutional Adviser B.N. Rau, it is necessary to compare the language of the clause 11 (1) and clause 9(1) in the draft Constitutions with the earlier clause 4 of draft of subcommittee. He substituted the following clause as clause 1 of draft Article 11. The changes made are italicized. ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them.’ 

It is also interesting to note that, B. Pattabhi Sitaramayya, Durgabai, Mahavir Tyagi,Thakurdas Bhargava. B.V. Keskar, T.T. Krishnamachari, M. Anathasayanam Ayyangar and k. Santhanam raised objections about the inclusion of the word ‘only’ and recommended its deletion wherever it occurred viz. draft article 9 and 10 etc (presently Articles 15 and 16 of Constitution of India). However, the same was rejected by B.N. Rau, by giving following justification,

“[There is an argument that] there are advantages in retaining this wording. For example, suppose because of discrimination against Indians in South Africa, India decides to discriminate against South African Europeans in India. Such discrimination would be on grounds of race, but not on grounds only of race: the Constitution as it stands, would permit it, but not if it is amended as proposed”… In my opinion, It is not clear how this example would explain the insertion of the word ‘only’ in draft clause 10 (presently Article 16 of constitution of India) dealing with non-discrimination in the public employment. Rau also did not offer any justification or articulated his thought on the insertion of the words ‘only’ ‘or any of them’ in his book. (B. Shiva Rao Vol IV (2004) PP 27)

During the final debate on this Article on 29^th November 1948, the above amendment of B. Pattabhi Sitaramayya and others was not taken up. (P 673) But on same day, during the final discussion of draft article 10 ( present article 16 of constitution of India), Naziruuddin Ahmad moved amendment no 333, by observing “That in clause (2) of article 10, for the words ‘on grounds only’ the words, ‘on grounds’ be substituted. It is really a motion for deletion of the word ‘only’ which seems to be redundant or rather causing some difficulty. The same difficulty has been felt by a large number of honorable members, as is evidenced by several amendments to the same effect”.

The other similar amendments were amendment no. 335 and first part of 337. It is also necessary to point out another amendment no. 336 moved by Naziruddin Ahmad, also doing away with the word “only”: “thus for clause (2) of article 10, the following clause be substituted, ‘(2) every citizen shall be eligible for office under the state irrespective of his religion, caste, sex, descent or place of birth’.. the only reason for suggesting this amendment is that it is more direct in form” Amendment 341 was similar to the amendment 336 and was not moved.

During his reply to the discussion ,B.R. Amebdkar pointed out, “Mr. Vice President… that I cannot accept amendment 334 by Misra nor I can accept the two amendments moved by Mr Nazruddin Ahemad , nos. 336 and 337…”

I submit that the observations of B.R. Ambedkar in respect of the amendments moved by Nazruddin Ahmad sidestepped the real issue as to what in substance were the objections raised by the members.

Anti-discrimination vs Non-discrimination

Furthermore, an amendment suggested by Jaypraksh Narayan to add a sub-clause to clause 1 of Article 9, so as to afford protection against discrimination on the ground of ‘sex’ for interalia ‘possession of property, exercising or carrying of any occupation etc’ was also rejected by pointing out interalia,

“ … Under Hindu Law there are certain disabilities with regard to the possession of property on the ground of ‘sex’….it may for example be necessary to impose restrictions on the carrying out of certain occupations by women such as the occupation of rickshaw-puller, the occupation of laborer in mines etc….the amendment if accepted, will not enable the State to impose any such restrictions…..” (Vol IV (2004) PP 29-30)

On the basis of this, I submit that B.N. Rau introduced a subtle distinction between ‘Anti-discrimination and non-discrimination’ because although as a part of strategy of Anti-discrimination, he retained all the prohibited grounds as suggested by Rajgopalachari Committee, but he seriously watered down the scope of Non-discrimination. Thus, he envisaged the possibility of legitimizing the discrimination even on prohibited grounds, if State could suggest some other non-prohibited grounds as compelling justification for the discrimination and could prove that it is not a discrimination ‘only’ on one of the prohibited grounds. Of course in one way the draft of B.N. Rau was quite ahead of time. By incorporating the words ‘or any of them’ he not only recognized the phenomenon of Multiple discrimination but also created a potential for invocation of ‘Principle of Intersectionality’. There is neither discussion in the constituent assembly about the significance of these words, nor has the judiciary has taken their due cognizance during the interpretation of articles 15 and 16. Indeed, it is ironical that at one hand, B. N. Rau contracted the scope of Non-discrimination, while on the other hand, like a visionary, he also opened up the possibilities of placing innovative and creative interpretation on Articles 15 and 16. Similarly, he also severed the Proviso as suggested by Rajgoplachari from draft clause and incorporated a separate clause by making some qualitative and material changes, which was adopted finally as present Article 15 (3). The clause reads as, ‘Nothing in this Article shall prevent the State from making any special provision for women and children.’

Prior to the introduction of the final draft of the Constitution before the Constituent Assembly on 4^th Nov 1948, one of the members, Tajamul Husain had sought the complete deletion of clause 2 of Article 11 (Present Article 15 (3). However, his suggestion was not accepted by Constitutional adviser B.N. Rau, who opined,

“ ..this clause is necessary as obviously special provision would be required in the case of employment of women and children in factories and mines…” (Vol IV (2004) PP 29)

On the other hand, during the final debate, K.T. Shah had moved an amendment to this clause to also include in its scope ‘scheduled castes and backward tribes ‘along with women and children. However, B.R. Ambedkar rejected this amendment by drawing a distinction between SC/STs and women:

“… with regard to amendment no.323 moved by Professor K.T. Shah ,the object which is to add ‘the scheduled castes and scheduled tribes’ along with women and children, I am afraid it may have just the opposite effect. The object which all of us have in mind is that the scheduled caste and scheduled tribes should not be segregated from the general public. for instance none of us, I think would like that separate schools should be established for Scheduled Caste , when there is a general school in a village open to the children of the entire community…if these words are added, it will probably give a handle for a State to say, well , we are making special provisions for the scheduled caste. To my mind they can safely say so by taking shelter under the Article if it is amended in the manner …..”

Subhash Kashyap points out that according to Constitutional adviser B.N. Rau, this clause [Present Article 15(3)] was an exception to the general anti-discrimination clause (Dr. Subhash Kashyap Ed. Vol V P 187). He also demonstrates how B.N. Rau found support for insertion of clause 2 of Draft Article 9 ( Present Article 15 (3) of Constitution of India) , during his discussion with Justice Frankfurter of US Supreme Court by noting ,“ ..Justice Frankfurter emphasized that legal provision might occasionally have to be made for women e.g. to prohibit employment for a certain period before and after child-birth ”. (Dr. Subhash Kashyap Ed. Vol V P 187)

 

 

Guest Post: Women and the Constituent Assembly – I

(Dovetailing with the previous discussion of sex discrimination on this blog, the following three-part guest post series by Professor Sanjay Jain focusses on the discussions surrounding women and the Constitution, during the Constituent Assembly Debates)

—

Representation of Women in the Constituent Assembly

Representation of women was low in the Constituent Assembly. One of the women members, Purnima Banerjee, tried to raise the issue of vacancies created by the exit of three prominent women members in the Constituent Assembly. She was of the opinion that the vacancies should be filled by women to ensure a more egalitarian perspective in the constitution-making process. However, the Assembly did not support her. In this connection, the observations made by H.V. Kamath are of particular importance because they show the extra ordinary political indifference to gender representation in the constitution making process and also reinforce stereotypes about women. He observed,

“…, if I heard her right, she said that women should be given a greater chance more scope, in affairs of administration and government than they are being given today. The most common and the strongest objection so far put forward by political philosophers in this….regards the capability of women for government and administration is that woman is ruled more by the heart than by the head, and where the affairs of Government are concerned, where we have to be cold and calculating in dealing with various kinds of men, women would find it rather awkward and difficult to deal with such persons and ….If the heart were to rule and the head to take a secondary place then it is felt by many thinking men, and thinking women too, that the affairs of government might go somewhat awry, might not fare…..”

He further observed however,

“….I think the House will not quarrel with Shrimati Purnima Banerji on this point that where a seat held by a woman Member is vacated that seat should normally go to another woman.”

B.R. Ambedkar responded to Purnima Banerjee’s request by claiming,

“…….I do not think it is necessary to make a specific provision for the retention of women in this Constituent Assembly. …..the President in the exercise of his powers of rule-making will bear this fact in mind and see that certain number of women members of the Constituent Assembly or of the various parties will be brought in as members of the Provisional Parliament.” (dated 11th Oct. 1949)

Being inclined towards a perfectionist State, the focus of the framers of the Indian constitution was more on the ‘rights discourse’ rather than on the ‘principle of equality.’ They proposed to incorporate the ‘right to life and personal liberty, the right to equality, the right to property, and the right to nondiscrimination’ in a single provision (B Shiv Rao “The framing of India’s Constitution’, Vol II, P 173 ). The Article was extensively deliberated from 16^th April 1947 to 30^th April 1947 and underwent several changes. Particularly, the difference of opinion between K.M. Munshi and Allidi Krishnaswami Ayyar is worth noting. The latter insisted for the deletion of the principle of ‘equality before the law’ by observing “so long as it is merely a maxim or principle of the common law there is a certain flexibility attaching to it and it can be adopted by the courts and legislatures to changing circumstances but when the same is made a constitutional guarantee it is beset with difficulties. Every law which violates this principle becomes invalid and will become subject to the crucible of judicial review. The statute law of the country may have necessarily made (sic) a difference between infants and adults (vide Juvenile offenders Act), between men and women (vide factory and labour legislations)”.( B Shiva Rao “ Framing of India’s Constitution” Vol II P 212.) The Subcommittee on fundamental rights accepted this view and transferred the principle to the section of non-justiciable rights (B Shiv Rao “ The framing of India’s Constitution’ , Vol II, P 175) from the draft clause 12. However, when the article came for consideration before the Constituent Assembly on 30^th April 1947, without any discussion on this issue, the principle was reintroduced as a part of justiciable rights. Even at this stage, Article 14 was not in its final form and was later separated from present Article 21. It is also interesting to note that there was little discussion on the adoption of the principle of ‘equality before the law’ and the ‘equal protection of the law’ in Constituent Assembly debates at the time of finalization of Article 14.( dated 2^nd December 1948, accessed 16^th august 2012).

Protectionism

Such attitudes – i.e., based upon portraying women as victims and in need of protection, can be seen to be carried over in the gender specific terminology that was advocated at certain places. For example Lakshminarayan Sahu, [supported by H.V. Kamath] suggested amendments in draft Article 31(v) (Presently Article 39(e). Article 39(e) now reads:

“… that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.”

Sahu recommended that:

“…., for the words ‘their age’ the words ‘their age, sex’ be substituted………Mr. Kamath admitted here that even he considers that the word ‘Sex’ should be put in but that he did not do so because the term ‘Sex’ was not liked by some lady members of this House. But I insist that this word should be retained here. I would like to know the reasons which led them to say that they did not like this word. We see that the word ‘Sex’ has already been used in article 9 of the Fundamental Rights….. Secondly, if we do not use the word ‘Sex’ here, many unpleasant complications are likely to ensure…. There are many such factories and mines which are not fit for women to work in. But many women are compelled by circumstances to work there. To stop this practice the word “Sex” should be specifically used here. ….third…The condition of the women of our country is rather deplorable and I do not like that they should work day and night in the mines and be obliged to adopt some such profession which may spoil their home life…” (CAD Volume VII PP 512, 22^nd Nov.1948.)

Kapoor and Cossman note that in this approach, women are construed as weak and subordinate and are pursued to be in need of protection. Such differential treatment in some circumstances is said to be preferential treatment. This approach unduly essentialises the sexual difference.

The Uniform Civil Code

During the protracted debate on draft Article 35 (Presently Article 44) dealing with the Uniform Civil Code, there was only one intervention by K. M. Munshi pertaining to inequality faced by women in different religious personal laws. He observed,

“…..Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India….”

Trafficking etc.

There was a lack of interest and even opposition by women members themselves for constitutionalization of prohibitions on specifically gendered harms such as the Devdasi system and dowry violence, and prostitution. In this regard, the discussion pertaining to the amendment moved by K.T. Shah to draft Article 17 (Presently Article 23) on trafficking in human beings is worth noting. He observed,

“That in clause (1) of article 17, for the words `Traffic in human beings and begar’, the words `Traffic in human beings or their dedication in the name of religion to be Devadasis or be subject to other forms of enslavement and degradation and begar’ be substituted.”

However, one of the women members expressed her reluctance for having such amendment on the ground that the practice of Devdasi system had been made illegal in the State of Madras. Similarly, T. T. Krishnamachari launched a scathing attack on Shah’s suggestion by observing,

“Sir, I am here primarily to oppose the amendment moved by my honorable Friend, Prof. K. T. Shah, in that it imports into the consideration of this article facts which ought not to be taken into account in a consideration of the fundamental rights that are to be incorporated in the Constitution…. If those abuses are such where vested interests are likely to seek perpetuation of those abuses, well, I think we have to provide against them, but if public opinion is sufficiently mobilized against those abuses, I do not think we ought to put a blot on the fair name of India, possibly, by enacting in our constitution a ban on such abuses. …Looking as I do at such matters in that light, I wish most of my honorable Friends in this House will not try to import into these fundamental rights age-old peculiarities of ours that still persist, bad as they are in particular parts of society which can be made to disappear by suitable legislation in due course, perhaps in two, three or four years….”

B.R. Ambedkar also adopted the views of Durgabai and Krishmanchari.

On the other hand, Das was more candid and realistic arguing,

“…However, I think we will not be justifying our constitution on fundamental rights if we do not accept and admit our great sins by including the words “traffic in women” and try to save the situation now and hereafter”.

Another female member, Renuka Ray however supported K.T. Shah by observing,

“Sir, if we do not accept the amendment of Mr. B. Das, it is not because we do not appreciate his purpose. …but I do think that the article as it stands does cover it…… As for the amendment that my honourable Friend, Mr. K.T. Shah, moved, I agree with Shrimati Durgabai that legislation has covered this problem in regard to Madras, but I think that if Mr. Shah’s amendment could be accepted by this House so that the Devadasi system–the dedication of women in temples–is abolished by a categorical provision in the Constitution, it would be better procedure as the custom still lingers in some areas….(dated 3^rd December 1948).”

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

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

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

Article 15(2) states, in relevant part:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.