Uttarakhand High Court “bans” Alcohol Consumption

Last week, the Supreme Court mandated the compulsory playing of the national anthem in cinema halls, without considering whether it had the jurisdiction or power to do so under the Constitution. The disease seems to be infectious. Yesterday, the High Court of Uttarakhand took it upon itself to ban the consumption of alcohol in three districts in the State of Uttarakhand. Like the Supreme Court’s order, the strange thing about the Uttarakhand High Court’s judgment (which runs into 34 pages) is that the public interest petitioner never even made a prayer for banning. The petition was about the alleged fact that the Government had opened a liquor bar in Haridwar, in contravention of its own Government Order, passed in 2002, which imposed prohibition within a 1.6 kilometre radius of Haridwar.

This is a rather narrow and specific prayer. That does not, however, stop the High Court from embarking upon a moralising homily about alcohol consumption and its ill effects. After that, the High Court cites a number of Supreme Court judgments for the proposition that there is no fundamental right to trade or conduct commerce in alcohol. And then comes the zinger:

“The State Government has imposed a ban on sale of liquor at Char Dhams but in order to give more sanctity to the government order and with a view to save the health of people living in the districts where these Char Dhams are located, the State Government should impose complete prohibition. The prohibition in these areas would bring peace and harmony. It is the poor segment of the society which spends more money on liquor than on food leaving their family and children in misery. The loss of revenue would be compensated by restoring the health of the society. The societal interest in every individual is prolonged by ensuring his healthy life. The use of intoxicants, drugs and liquor, in fact, affects the morality. Use of alcohol causes depression. It damages the liver. It may cause Cancer as well. The long-term consumption of liquor/alcohol results in death of brain cells. It may result in cirrhosis including Pancreatics. It also affects the social fabric of the society. Large number of devotees from all over the country visit Chardham in the State of Uttarakhand… The State Government, though, has taken laudable steps for prohibiting the sale of liquor in specified areas but taking into consideration the ever increase consumption of alcohol, more particularly in younger generation, the complete prohibition on possession, distribution, collection, sale, purchase or consumption of liquor/alcohol, including beer and intoxicants, is required, at least, in the districts where Chardhams are situate, to begin with. Similarly, the possession, distribution, collection, sale, purchase or consumption of tobacco is also required to be totally prohibited within a radius of five kilometres from Nanakmatta, Ritha Sahib and Hemkund Gurudwaras.”

This is all very lovely and quaint. It’s also legally irrelevant. All the Supreme Court decisions that the High Court cites are about the constitutional validity of  a complete or partial State-imposed prohibition, not about the Court itself imposing prohibition in the absence of any law. Much like the Supreme Court last week, the High Court seems to suffer from a rather basic confusion between what is desirable, and what is legal. Throughout the 34-page long judgment, the High Court cites exactly one constitutional provision: Article 47, which provides that “the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” The Court goes to the length of quoting the Constituent Assembly Debates for the purpose behind Article 47, but strangely, seems to be unaware of the existence of Article 37, which begins with the words “the provisions contained in this Part shall not be enforceable by any court…”

There is little ambiguity in the phrase “shall not be enforceable by any court“. To convert it from passive to active voice, it means that the Constitution prohibits the Court from enforcing a Directive Principle of State Policy. One would have expected the Uttarakhand High Court to at least invoke Article 21 in order to provide the regulation, customary fig-leaf of legitimacy, but even that is nowhere to be found in the judgment.

Under a Constitution that makes the judiciary the final arbiter of its own powers, the only effective check upon it is self-restraint. The last two weeks have shown that when it comes to directly encroaching upon personal rights and freedoms, that self-restraint is in short supply.

Directive Principles of State Policy: An Analytical Approach – VI: Limiting Principles and Conclusion

S0 far, we have argued that the Directive Principles of State Policy ought to play a role as structuring values, which give concrete meaning to the abstractly-worded fundamental rights in Part III. But in that case, is there any difference that now remains between fundamental rights and directive principles, one may well ask – apart from the fact that laws cannot be struck down for violating the DPSPs? The Court answered that question in its 1982 case of Ranjan Dwivedi v. Union of India, well into the heyday of the Directive Principles era. Article 39A mandated the State to provide equal justice and free legal aid. In Ranajn Dwivedi, the petitioner’s claim to a State-paid counsel engaged at a fees commensurate with the fees the State was paying to its own counsel was rejected, the Court holding that:

“As is clear from the terms of Art. 39A, the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid. The remedy of the petitioner, if any, lies by way of making an application before the learned Additional Sessions Judge.”

 In other words, the Court understood that shaping the State’s fiscal policy was most definitely beyond its remit. A similar set of concerns guided the Court’s decision in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan. In that case, the Court invoked Articles 38, 39 and 46 to read into the right to life the right to shelter, and a correlative constitutional duty upon State instrumentalities to “provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over [indigent persons’] heads to make the right to life meaningful, effective and fruitful.” In the same breath, however, it also held that “courts cannot give direction to implement the scheme with a particular budget as it being the executive function of the local bodies and the State to evolve their annual budget.” Thus, the Directive Principles played a structuring role in determining the contours of the right to life under Article 21, but insofar as enforcement of that right appeared to require decisions that, according to classical separation of powers models, belong to the legislative or executive branches, the Court said, thus far and no further.

This primarily institutional concern is reflected most vividly in the history of the right to education through the 1990s and the 2000s. In a series of cases such as Mohini Jain and Unnikrishnan v. State of AP, the Court invoked the Directive Principles to read into Article 21’s guarantee of a right to life, a right to education as well – but conspicuously refrained from going any further into an issue that would have profound economic and social implications, not to mention a massive reorientation of budgetary priorities. Eventually, it was the legislature that amended the Constitution to introduce Article 21A, codifying the right to education; and the Court’s task was to uphold the validity of legislation passed under that provision that imposed certain economic burdens upon private schools.

Conclusion

It has now become almost routine for the Supreme Court to invoke Part IV in its decisions – as routine as Articles 14 and 21. With the increasing role of the Directive Principles, the need for judicial discipline cannot be overstated. If the DPSPs are interpreted to mean everything, then they will end up meaning nothing. This series of posts has attempted to use constitutional text, history, precedent and philosophy to tether the DPSPs to a firm conceptual foundation, offering both a faithful description of existing practice, as well as prescriptive recommendations for the road ahead.

The Directive Principles, I have argued, serve three distinct roles in judicial interpretation. First, legislation enacted in service of the Directive Principles meets the “public interest” threshold in a fundamental rights challenge (importantly, its reasonableness must then be examined, and not on the touchstone of the Directive Principles). Secondly, if legislation is intelligibly susceptible to more than one interpretation, then the meaning that corresponds more closely to the DPSPs is to be preferred over others (although, as we discussed, the Court is yet to clarify the standard applicable to this enquiry). And thirdly, the DPSPs play a structuring role in selecting the specific conceptions that are the concrete manifestations of the abstract concepts embodied in the fundamental rights chapter. This is the best way to understand the Court’s dictum that fundamental rights “ought to be interpreted in light of the DPSPs.” There is thus a clearly delineated role for the Directive Principles in constitutional analysis.

The limits to this role are twofold: first, the Court may not strike down legislation for non-compliance with the DPSPs; and secondly, the Court may not incorporate the DPSPs to a point that requires it stepping outside its designated role under classical separation of powers theory – making policy choices and budgetary allocations (of course, the Court has not shrunk from this role more generally).

Such an approach, I suggest – although complex – is both intellectually defensible, and constitutionally faithful. Importantly, it ensures against the judicial drift that has blighted Articles 14 and 21, and is threatening to blight Part IV, with its recent, indiscriminate usage. Only time will tell, however, whether the Court follows this path.

Directive Principles of State Policy: An Analytical Approach – V: Framework Values in Operation

As discussed in the last essay, interpreting the DPSPs as framework values within which the nature and scope of Part III rights are determined, is perhaps the best way of understanding – and intellectually grounding – the Court’s approach that Mr. Seervai finds so unpalatable. In a series of cases, from Kesavananda Bharati through Minerva Mills and beyond, the Court has called for a “harmonious construction” of Parts III and IV, and regularly cited Granville Austin to observe that Parts III and IV “are complementary and supplementary” to each other, followed by vague pronouncements that leave it entirely unclear how this harmonizing is done, and what basis it has. If we view harmonizing as the Directive Principles providing the structural foundation within which fundamental rights are understood, it is not only one way of understanding what the Courts are doing, but also – as we have seen above – grounded in both text and history.

Although we have traced this interpretive approach to N.M. Thomas, we find glimpses of it throughout the Court’s jurisprudence. In his concurring opinion in Re Kerala Education Bill, for instance, Justice Aiyer refused to find a right to State recognition in minority educational institutions under Article 30(1) as implicit in the right to establish minority institutions, on the ground that this would make Article 45 redundant. Justice Aiyer was very clear that the question was not about a conflict between Article 30(1) and Article 45, and which was subordinate to the other. Rather, the question was about the content of the Article 30(1) right, whose determination was informed by Article 45.

 We can also find the argument in cases after N.M. Thomas. In Randhir Singh v. State of UP, the question was whether different pay-scales for drivers working in different departments violated Articles 14 and 16. Invoking Article 39(d) – equal pay for equal work, the Court held:

“Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle ‘Equal pay for Equal work’ is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.”

This is precisely the kind of reasoning we have discussed above. The Court invokes the Directive Principles to understand what equality under our Constitution truly means, in concrete circumstances; that is, in this case, it is the Part IV commitment to equal pay for equal work that informs the understanding of the Court that a distinction in pay for similar work is precisely the kind of arbitrary/irrational classification that amounts to unequal treatment under Article 14. A similar argument was echoed in Atam Prakash v. State of Haryana, where the Court referred to the Preamble and the Directive Principles to examine whether a particular classification was legitimate under Article 14.

Interestingly, the argument made by the Court in N.M. Thomas, Randhir Singh and Atam Prakash had been anticipated as far back as 1973, in the context of Article 19(1)(a). In Bennett Coleman the Court held that the government was not permitted, under 19(1)(a), to impose restrictions upon big newspapers in an attempt to equalize market conditions and facilitate the entry of new players into the marketplace of ideas, who wouldn’t otherwise be able to compete. In so doing, the Court adopted a particular individualistic, liberal theory of free speech that rendered constitutionally irrelevant the economic conditions that limited access to the existing means of effective communication of ideas in society, such as newspapers, television etc., all of which require a substantial resource base. Justice Mathew’s dissent invoked the Principles to argue against this conception, and advocate an alternative vision of free speech that refused to separate the freedom of expression from the economic and social conditions that defined and shaped it in a liberal-capitalist society. He held:

“… any theory of freedom of expression must take into account… the right of the public to education arising from the affirmative duty cast on the Government by the directive principles to educate the people, apart from the right of the community to read and be informed arising under the theory of the freedom of speech itself.”

Justice Mathew’s rejection of free speech as an individual right of non-interference, in favour of it being a social good characterized by principles of equal access, was grounded in the DPSPs, much like N.M. Thomas’ changed vision of equality. And twenty years after Bennett Coleman, in LIC v. Manubhai D. Shah, the Supreme Court, in holding that Article 19(1)(a) required a having a right to reply, even for an in-house journal, in order to ensure complete information, essentially accepted the free-speech-as-a-social-good approach. Although the LIC court did not expressly cite Part IV, the implications are obvious, when it held that fundamental rights were broadly  phrased, as abstract concepts, precisely so that Courts could ground them and give them meaning in accordance the socio-economic goals found elsewhere in the Constitution (which, obviously, would be the Preamble and Part IV):

“[The framers] had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution makers employed a broad phraseology while drafting the fundamental rights…”

Similarly, in Bandhua Mukti Morcha, the Court referred to Articles 39(d) and (e), 41 and 42 to infuse substantive content into the dignitarian principle underlying Article 21’s guarantee of the right to life – and many of the substantive rights that the Court was to subsequently read into Article 21 were located within this dignitarian foundation. In Olga Tellis, used the same technique (relying upon Articles 39(a) and 41) to read in a right to livelihood under the right to life. In Nashirwar v. State of MP, the Court invoked the Directive Principles dealing with prohibition to infuse moral content into Article 19(1)(g)’s freedom of trade: the right to freedom of trade itself was held not to include activities of a res extra commercium nature such as trade in alcohol. And as recently as 2014, it invoked Articles 39(e) and (f) to hold the right to a safe and healthy environment was part of the right to life.

In sum, therefore: We have seen how the Directive Principles have structured the application of equality under 14-15-16, free expression under 19(1)(a), freedom of trade under 19(1)(g), and life under Article 21, helping the Courts to select what conceptions, our of a number of available (and conflicting) ones, all consistent with the abstract concepts of equality, speech etc., are concretely required by the Constitution.

But doesn’t this approach, it might be objected, render fundamental rights utterly subordinate to the Directive Principles? We are, after all, arguing for the Directive Principles playing a role in ascertaining the very content of fundamental rights. It is important to understand that this is not so. The Directive Principles, we have argued, inform the content of fundamental rights; they do not determine them. The fundamental rights continue to embody concepts, and concepts themselves not only have determinate meaning, but also have core, paradigm cases that any conception must respect and account for. To invoke an old chestnut: H.L.A. Hart’s famous “No vehicles in the Park” rule has its penumbra of doubt in the case of bicycles and toy trucks, where the decision might go either way without necessarily being right or wrong, but it also has its core of certainty that definitively proscribes buses and tractors. Similarly, the Directive Principles might tell us which conception of equality the Constitution subscribes to, as they did in N.M. Thomas, but they can only do so within the bounds allowed by the concept of equality.

The tortured history of Articles 31A and 31C seem to bear this out. 31A, aimed at land reform, was inserted into the Constitution following a series of Article 14 challenges to land legislation. 31A bars an Article 14 challenge to laws – inter alia – authorizing the acquisition of any estate, taking over the management of any property, and so on. Although the Amendment itself – historically – was necessitated by a particularly doctrinaire interpretation of equality by the early Court, it is also obvious that its provisions are broad enough for land legislation that might be difficult to justify on most conceptions of equality, even those shaped by the Directive Principles – hence the need for the protection of a constitutional amendment. Similarly, 31C insulated any law aimed at giving effect to anything in Part IV from a 14 or 19 challenge – clearly indicating that it is possible for Part IV-grounded laws to violate fundamental rights (hence, the need for an amendment to insulate them). This understanding, at least partially motivates the Court’s 2005 opinion in State of Gujarat v. Mirzapur Moti Kasab Jamat, another cow-slaughter case. There, the Court observed:

“A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires [as long as] it does not run in clear conflict with the fundamental right…”

In light of our discussion above, I suggest that “clear conflict” is best understood as implying the settled, indisputable central (or minimum) core of any concept (such as equality, free speech, freedom of conscience etc.) that conceptions cannot violate if they are to be conceptions of that concept in the first place. The Directive Principles are structuring values, but they themselves operate within a web of constraints determined by the very concepts (located in Part III) whose underlying structure they must provide.

Directive Principles of State Policy: An Analytical Approach – IV: The DSPSs as Framework Values

In the previous post, we saw how in the 60s and 70s, the Court gradually chipped away at its earlier jurisprudence: beginning with making the Principles constitutionally relevant, and then erasing their subordinate status to the fundamental rights. The consequences of these two moves are crucial. Before we examine the cases, however, a brief digression into political philosophy is apposite.

It hardly needs repeating that Bills of Rights are framed in abstract language, laying down broad principles and concepts rather than concrete conceptions. Take the classic example of “freedom”. Everyone agrees that if I am locked up in a room, my freedom is curtailed. Everyone also agrees that my inability to fly unaided is a limitation upon my actions, but not an infringement upon my freedom. My body structure and the forces of gravity, which combine to render it impossible for me to fly, are simply background conditions that structure the world in which we all live. But now consider this: my lack of money bars my access to goods and services that I otherwise want or need. Is this a violation of my freedom? The philosopher Friedrich Hayek would answer in the negative, holding that only the intentional actions of individuals – and not the impersonal workings of the market – can constitute restrictions upon liberty. G.A. Cohen, on the other hand, would argue precisely the opposite. What, then, are we to make of a constitutional clause that promises freedom? Does it embody Cohen’s vision – and thus, potentially, place an obligation upon the State to provide adequate social security – or does it embody Hayek’s vision – placing no such obligation? Or another vision altogether? To answer this question, naturally, we must investigate the basic values that underlie the Constitution in question, and going beyond that, the political, economic and social values that structure the polity that has adopted that Constitution.

The result of the Indian Supreme Court’s twenty-year incremental approach to the Directive Principles brought it to a point, I argue, where the Directive Principles finally came to assume the role of these structuring values. The best example is State of Kerala v. NM Thomas. In order to understand what was at stake in NM Thomas, recall the judgment in Champakam Dorairajan, in 1951. The government’s affirmative action program for admissions to medical and engineering colleges was struck down on Article 15 grounds, and the state’s reference to the Directive Principles (Article 46) was rejected. That same year, Parliament amended the Constitution to introduce Article 15(4), specifically allowing for affirmative action in educational institutions.

The Court’s judgment, and Parliament’s action, demonstrate a specific vision of equality running through Articles 15 and 16. Let us call this the “colour-blind conception” of equality. This holds that there is a specific harm whenever the State classifies individuals on the basis of their caste, race, sex etc. – because historically, it was these bases that were used to sort people into categories, and determine their worth. Therefore, any distribution of benefits or burdens that classifies us into groups on such grounds, is presumptively suspect. Individuals are to be treated qua individuals, and not as members of groups. That this was the animating vision of the Dorairajan court is evident from the fact that it refused to locate the permissibility of remedial affirmative action within Article 15 itself, and that it required a specific amendment from Parliament to legalise it. Cases after Dorairajan affirmed this view, treating Articles 15(4) and 16(4) as exceptions to the 14-15-16 equality code.

While the colour-blind conception of equality is individual-centric, there is a competing vision. Call it the “group-subordination” vision. This argues that groups have been the locus of historic discrimination. Thus, remedial action must take into account the subordinate status of groups (such as women, or “lower-castes), and governmental policies are perfectly legitimate if they make groups the site of redressing historic discrimination and achieving genuine present-day equality. Article 46, which was cited and dismissed by the Court in Champakam Dorairajan, specifically envisages this conception, when it refers to the interests of the weaker sections of the people.

Under the colour-blind conception of equality, NM Thomas ought to have been an easy case. The question was about the constitutionality of caste-based affirmative action in employment. Article 16 guaranteed the equality of opportunity in employment. Article 16(4) carved out a specific exception for “socially and educationally backward classes.” It was not disputed that caste-based affirmative action was not covered by the 16(4) exception. Surely, then, this was a straightforward equal-opportunities violation. Not so, said the Court. Articles 15(4) and 16(4) were not exceptions to 15(1) and 16(1), but emphatic restatements of it. In other words, remedial affirmative action for certain historically subordinated groups was no longer grounded in 15(4) and 16(4), that specifically provided for it, but implicit within the logic of the Constitutional commitment to equality itself.

What justifies this departure from precedent, and seemingly from the text as well, that speaks of “persons” under Articles 15(1) and 16(1)? The majority doesn’t say, but Justice Mathew and Justice Krishna Iyer, in their concurring opinions, do. According to Justice Mathew:

“…if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court… the guarantee of equality, before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal… today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law.”

This is crucial, because the shift from the precedent-based colour-blind vision of equality to a group-subordination conception is justified by invoking the Directive Principles in general, and Article 46 in particular. Articles 14, 15 and 16 set out the abstract concept of equality. Justice Mathew uses the Directive Principles to decide which conception – colour-blind or group-subordination – is more faithful to the Constitution. It is in this way that the Directive Principles act as structuring values. Thus, as Justice Krishna Iyer observed: “The upshot after Bharati, is that Article 46 has to be given emphatic expression while interpreting Article 16(1) and (2).”

The point is perhaps summed up best by Justice Bhagwati’s partially-dissenting opinion in Minerva Mills:

“Where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the  law, but  it would almost always conform to the principle of equality before the law in its  total magnitude and  dimension…”

Once again, then, it is the directive principles that inform the conception of equality that Articles 14, 15 and 16 only lay out abstractly. More recently, Ashoka Kumar Thakur put the point another way, holding that “the facets of the principle of equality could be altered… to carry out the Directive Principles…”

 The present argument reflects a point first made by Tripathi, long before this jurisprudence came into being. In 1972, Tripathi argued that it is the Supreme Court’s “duty so to discharge its own function of enforcing fundamental rights as not to obstruct the legislature in its respective function of applying the directive principles in the making of laws.” Drawing an analogy with the American Supreme Court’s upholding of President Roosevelt’s extensive New Deal social welfare legislations (despite no express textual peg in the American Constitution on which to hang them), Tripathi understood the Directive Principles to be performing a similar function of mitigating the social evils that spring from a laissez-faire interpretation of formal equality, the right to property and other such civil rights. Indeed, Tripathi saw the abstract wording of Part III rights as an invitation for “judicial creativity”. The aim of this essay has been to demonstrate how such creativity might best be applied in a manner that is most consistent with the text, structure and animating philosophy of the Constitution.

This argument conforms with the three-pronged holistic interpretation of Article 37 that we discussed above. It is consistent with the prohibition on enforcement, while maintaining a place for the Principles in the judicial enquiry, and saving them from redundancy. It also tracks a strain of constitutional thought that was present throughout the late stages of the freedom struggle, up to the framing of the Constitution. In her survey of the primary material, Jayal notes that economic and social rights were understood through the 1930s and 1940s as essential for securing the “meaningful” enjoyment of civil and political rights. In his 1947 Memorandum, Ambedkar specifically argued that political democracy must ensure that an individual is not forced to “relinquish… rights as a condition of receiving a privilege”, and focused on the meaninglessness of civil and political rights to the unemployed, starving and economically powerless. Ergo, even if social and economic rights were not to be made enforceable, there was strong support for the proposition that meaningful civil and political rights could not exist without being conceptualised in a way that took into account socio-economic considerations.

This tempered understanding of socio-economic rights – unenforceable yet relevant – is evident in the Constituent Assembly Debates. Consistent with the role of the principles as structural values, arguments to make them more detailed and specific were repeatedly rejected. For example, an amendment to add the prohibition of monopolies to the Directive Principle prohibiting the concentration of economic wealth did not succeed. K.T. Shah’s proposal to add “socialist” to the Preamble was met with Ambedkar pointing out that the “socialistic direction” of the Constitution was provided by the Directive Principles such as equal pay for equal work, the rejection of the concentration of economic wealth, and so on. Yet perhaps the best evidence of the framers’ intent can be gleaned by Ambedkar’s elaborate speech in defence of the Directive Principles. Ambedkar identified the goal of the Directive Principles as the achievement of “economic democracy”, complementary to “parliamentary democracy”, which was the task of the rest of the Constitution. He steadfastly refused to identify economic democracy with a particular economic or political school of thought (notwithstanding his earlier remark about the socialistic direction of Part IV), only referring ambiguously to the principle of “one man, one value”.

Ambedkar’s speech does two things. First, it affirms that there is an animating vision underlying Part IV as a whole, one that is sufficiently abstract so as not to be tied to political and economic –isms, but also sufficiently constraining (through specific provisions such as non-concentration of wealth, equal pay for equal work, and so on). And secondly, if economic democracy and parliamentary democracy are meant to be complementary and of equal importance – as the speech reflects – then the interrelation between Parts III and IV that we have proposed appears to be a seamless integration of the two. Parliamentary democracy is guaranteed by the set of individual rights located in Part III; but the substantive content of those rights – whether equality means colour-blindness or remedying group subordination, for instance; whether the free speech guarantee requires the government to adopt a laissez faire approach or permits it to remedy market inequalities guaranteeing persons an equitable access to the modes of communication (like newspapers) – these questions, that Part III leaves open, are to be resolved by determining what economic democracy under Part IV means, and informing the content of fundamental rights based upon that understanding.

 

Directive Principles of State Policy: An Analytical Approach – III: The Relationship between Fundamental Rights and Directive Principles

In this post, we continue our examination of the place and role of the Directive Principles of State Policy within the constitutional scheme. Part I dealt with the conceptual foundations underlying the division between fundamental rights and directive principles, and Part II focused on the history and text of Article 37, along with early judicial interpretation. In this post, we shall look at the Court’s evolving understanding of the relationship between Directive Principles and Fundamental Rights over time)

As we discussed towards the end of Part II of this series, the Supreme Court judgment in Re Kerala Education Bill  marked a shift in the Court’s understanding of the DPSPs. In the first decade of its existence, the Court had largely cleaved to H.M. Seervai’s understanding of Part IV – namely, that the directive principles were politically significant but constitutionally irrelevant. In Re Kerala Education Bill, however, we see for the first time the fateful phrase – “harmonious construction of fundamental rights and directive principles”. Harmonious construction – a phrase borrowed from the legislative competence cases – is of elastic ambit, and has been used elastically by the courts. In this post, we consider two ways in which the court has understood the relationship between Parts III and IV of the Constitution.

The Directive Principles as Markers of Reasonableness

The Indian Constitution provides inbuilt, textual limitations to its fundamental rights. For instance, Article 19(1)(g), that guarantees the freedom of trade, also permits the government to legislate “reasonable restrictions… in the interests of the general public”. In the aftermath of In Re Kerala Education Bill, the Court began to invoke the DPSPs to decide the ambit of the restrictions upon fundamental rights. This happened primarily in the realm of labour legislation, where a number of employee-oriented laws were challenged under Article 19(1)(g). In Prakash Cotton Mills v. State of Bombay, the question was whether the state could compel companies to join collective bargaining agreements that they had not directly consented to. Examining the application of Article 19(1)(g), the Bombay High Court observed:

“In the larger interests of the country an employer must submit to those burdens and carry on his business in conformity with the social legislation which is put upon the statute book.” (para 6)

While Prakash Cotton Mills did not directly refer to the Directive Principles, Jugal Kishore v. Labour Commissioner did so, citing no less than three of the Principles to hold that notice requirements and other restrictions upon employers’ discretion were restrictions in interests of the general public. Similarly, in Chandrabhavan v. State of Mysore, the Court upheld state minimum wage legislation, cursorily dismissing the 19(1)(g) claims of the employers by stating:

“We are not convinced that the rates prescribed would adversely affect the industry of even a small unit therein. If they do, then the industry or the unit as the case may be has no right to exist. Freedom of trade does not mean freedom to exploit.” (p. 612)

 Chandrabhavan is also noticeable in that it came at the end of the 60s, and marked another shift in the Court’s jurisprudence by abandoning the “subordinate-but-relevant” doctrine of In Re Kerala Education Bill. In Chandrabhavan, the Court observed that the bill of rights and the directive principles were “complementary and supplementary” to each other. In some way, this approach had already been adopted in Golak Nath v. State of Punjab, and it was echoed in two of the important constitutional cases of the 70s, Kesavananda Bharati v. State of Kerala, and Minerva Mills v. Union of India. The Court rationalized this approach by defining the directive principles as “social goals”, and the fundamental rights as “side constraints” to be scrupulously adhered to by the government in its pursuit of those goals. In thirty years, therefore, the Court moved from a position where the Directive Principles were constitutionally irrelevant to a point where they were constitutionally at par with the bill of rights, with the only difference being that citizens could not move the Court directly to enforce them. Yet the judgments of the 70s, placing the Directive Principles on the same conceptual level as the bill of rights was to have far-reaching consequences, as we shall presently note.

The shift in the 70s, that we shall go on to discuss, was complementary to the reasonableness-of-restrictions approach. It did not replace it. Throughout its history, the Court has regularly invoked the Principles to find that Article 19 restrictions are valid, in fairly unproblematic ways. The Court has done this through a simple argument: the Directive Principles, it has held, are self-evidently expressions of what public interest is. Any governmental policy aimed at advancing a Directive Principle, then, cannot but be in the public interest, and can, at times, raise a presumption of reasonableness. Unfortunately, the Court has also held, on occasion, that such a policy is reasonable simply by virtue of being enacted in pursuit of a directive principle.

This is clearly unwarranted. Consider, for example, the 2012 Right to Education Case. The Court held that the obligations imposed by the Right to Education Act upon private schools – i.e., a compulsory 25% intake from economically underprivileged households within a certain catchment area – to be reasonable restrictions under Article 19(6), by virtue of being in pursuance of the Directive Principles. The Court would probably not have reached the same result had the compulsory reservation been, say, 80%, although that too would have been in pursuance of the Directive Principles. Clearly, then, it is quite possible to implement the goals set out in Part IV in an unreasonable manner. This was something the Court clearly understood in Mirzapur Moti, where it held that a restriction aimed at fulfilling the Directive Principles will be reasonable insofar as it does not run in “clear conflict” with the fundamental right. It is this line of reasoning that is correct and – it is submitted – ought to be followed in the future.

The Directive Principles as Interpretive Guides

Once the Court had cleared the path for invoking the Directive Principles in legal adjudication in In Re Kerala Education Bill, it was not long before it took the next logical step: using them as interpretive guides. In Balwant Raj v. Union of India, a 1966 judgment of the Allahabad High Court, an employee of the Indian Railways contracted tuberculosis and was unable to come to work for a time. Consequently, he was discharged for “failing to resume duty” under the stipulated rule. Reading the Directive Principle requiring the State to secure the right to work, the Court limited the phrase “failing to resume duty” to voluntary failures, holding that “the rule must be interpreted in accordance with letter and spirit of the Directive Principles of State Policy.” Thus, the Court assumed the legal fiction that the State had, in fact, applied the Principles in framing the contested legislation.

Yet what, precisely, is the strength of that legal fiction? A survey of comparative constitutional practice reveals four distinct standards that constitutional courts have adopted when construing legislation to harmonise with standards contained in a super-statute or Constitution. Let us call these four standards “weak”, “medium”, “strong” and “modificatory” .

A weak standard only requires Courts to select that interpretation, out of a series of equally reasonable interpretations arrived at independently, which coheres better with the background right at issue. A medium standard, found in New Zealand, requires a meaning that is “fairly open… and tenable” to be preferred if it is consistent with the bill of rights. The strong standard, adopted by the UK Supreme Court in interpreting the Human Rights Act, goes one further and allows for any interpretation, no matter how strained, to be preferred if it is consistent with the Human Rights Act and is an intelligible reading of the statute in question. And the modification standard goes furthest of all – it stipulates that the meaning of legislation itself is to be determined by referring to the background right.

In Balwant Raj, the Court adopted – arguably – a strong standard of review, infusing an additional condition into a provision that was nowhere in evidence on its face. Subsequently, however, it went even further: in UPSEB v. Hari Shankar, the Supreme Court was interpreting the phrase “Nothing in this Act shall apply…” The technical details of the case need not detain us here; it is this observation of the Court that is striking:

“That is the only construction which gives meaning and sense to Sec. 13-B and that is a construction which can legitimately be said to conform to the Directive Principles of state Policy proclaimed in Articles 42 and 43 of the Constitution.” (p. 371)

In other words, the Court treated the Directive Principles as constitutive of legislative meaning: the maximum degree to which it could infuse directive principles into the law without directly enforcing them. This strong vision of the Directive Principles has been latent in the Court’s jurisprudence since then. In 2013, for example, the Court invoked the Directive Principles in determining the meaning of the phrase “public purpose” under Article 282 of the Constitution. It held that the Tamil Nadu state government’s distribution of free televisions was a valid “public purpose” under Article 282 because it was in pursuance of the Directive Principles.Unfortunately, however, the Court – thus far – has failed to undertake a coherent, doctrinal analysis of the precise role that the Principles are meant to play in statutory interpretation.

In the next essay, we shall examine – and defend – one final way in which the relationship between Parts III and IV has been instantiated by the courts: that of using Part IV to establish the framework values within which Part III rights are given meaning and sense.

Directive Principles of State Policy: An analytical approach – II: The Constituent Assembly, Article 37 and the Early Days

This is the second part of a series of analytical posts on Part IV of the Constitution – the Directive Principles of State Policy. In the first post, I examined the possible conceptual distinction between Part III (“civil/political” or “first-generation” rights), and Part IV (“socio-economic” or “second-generation” rights), concluding that from the point of view of adjudication and judicial reasoning, the distinction ought not to make any difference. From this post onwards, we discuss the judicial understanding of Part IV, an its relationship with Part III).

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Part IV of the Constitution commences with Article 37, which states:

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

Each of the three highlighted terms is susceptible to different interpretations. First – non-enforceability means, of course, that one may not ask the Courts to strike down a law for violating the Directive Principles (contra fundamental rights). But does non-enforceability also bar the Courts from using the Directive Principles in considering, interpreting and adjudicating upon other laws? Secondly – our enforceable Part III rights are specifically defined as “fundamental rights”. Does the use of the same word in Article 37 imply some degree of conceptual overlap between Parts III and IV? And thirdly – what is the nature of the “duty” that Article 37 imposes upon the State? Is it a constitutional duty, a legal duty or a moral duty? And what are the consequences? A purely textual reading of Article 37 cannot answer any of these questions, and is insufficient to inform our understanding about the nature of the Directive Principles, and their place in constitutional adjudication.

At one end of the spectrum stands H.M. Seervai, who argues that the Directive Principles are nothing more than political exhortations to the legislature, and can only be “enforced” at the ballot box. According to Seervai, a Court may not even take note of the existence of the DPSPs (much less their content) in deciding any case, constitutional or otherwise. And in the first ten years after the Constitution came into being, the judiciary adopted this approach. In State of Madras v. Smt Champakam Dorairajan, for instance, the State’s justification of caste-based reservations under Article 46 of the Constitution was rejected on the ground of the non-enforceable character of the DPSPs. Similarly, in Muir Mills vs Suti Mills Mazdoor Union, the Court refused to invoke the DPSPs even to interpret the law on workmen’s right to bonus payments, sticking instead to the traditional common law of wages and bonuses. Various High Courts followed this approach, taking non-enforcement to be equivalent to constitutional irrelevance. For instance, in Jaswant Kaur vs State of Bombay, the Bombay High Court unambiguously held that “any article conferring fundamental rights cannot be whittled down or qualified by any thing that is contained in part IV of the Constitution.”

This approach reached its apogee in the famous cow-slaughter judgement of 1959 – Mohd Hanif Qureshi v. State of Bihar. Bihar’s cow slaughter ban was justified by arguing that it was designed to give effect to Article 48. Rejecting this contention, the Court noted:

“… a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights.”

In other words, while the State ought to make laws implementing the directive principles, Part III rights, standing alone and interpreted autonomously, would place a check upon such endeavours. The Directive Principles ought to have some role to play at the time of enacting legislation, but none afterwards. This was evident in the manner in which the Court decided Qureshi. Its exhaustive economic analysis informing the application of Article 19(1)(g) and 19(6) saw little reference to the DPSPs.

That same year, however, marked a subtle – yet distinct – change. In Re Kerala Education Bill dealt with the rights of minorities to run educational institutions. Referring to the Directive Principle (Article 45) that mandated the State to ensure the provision of effective and adequate education, the Court observed:

“The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights… nevertheless, in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.”

Notice that while both Mohd Hanif Qureshi and Re Kerala Education Bill use the phrase “harmonious construction/interpretation”, they use it in different senses. Qureshi’s harmony does not accord any interpretive role to the Directive Principles. In Re Kerala Eduction Bill, on the other hand, while reaffirming the primacy of the fundamental rights, the Court nonetheless opens the gates for DPSPs to play a tangible – if subsidiary role – in interpretation, holding that the “scope and ambit” of the fundamental rights should be determined in such a harmonious way, that full effect is given both to Part III and Part IV.

Before we pause to examine the evolution of this approach, we must examine the constitutional arguments that support this position. The first is textual. Article 37 states that it shall be the duty of the State to apply the Directive Principles in making laws. Now, whether the obligation is legal, moral or political, it is, at the very least, a Constitutional obligation. And if we are to accept the benign fiction that the legislature is composed of reasonable persons pursuing reasonable ends reasonably, then it makes sense to assume that, insofar as the parliament acts in good faith while enacting laws, it is taking the DPSPs seriously, and applying them in the making of such laws. Consequently, when a Court is called upon to interpret those laws, it may assume that Parliament has legislated in consonance with the DPSPs and, therefore, may invoke them in determining the content of laws. Thus, textually, there is at least some scope for the DPSPs in an interpretive enquiry (the clause leaves open what scope, exactly) that does not rise to the level of “enforcement”. According to Ambedkar himself, the proscription on enforceability was to be as imposing no obligation upon the State to act upon the Directive Principles – not that the principles themselves were irrelevant in understanding how the State had (legislatively) acted, once it did.

Seervai relies upon Ambedkar’s initial speech in the Constituent Assembly Debates to substantiate the ballot-box argument. Ambedkar, however, made the ballot box point in a very specific context: to draw a contrast between requiring the government to answer for the breach of a directive principle in a Court of law, and to answer for it to the electorate. That is, he was concerned about non-enforceability which, as we have seen, does not exhaust the textual possibilities of Article 37. In the same speech, indeed, Ambedkar repudiated the objection that the DPSPs were no more than pious wishes, arguing that no legal force did not imply no binding force. Ambedkar’s use of the word “binding” (as opposed to “political” or “moral”), a word that is equally at home in both a legal and a non-legal context, seems to indicate that the Principles, while falling well short of enforceability, were not meant to be legally irrelevant either. Responding subsequently to Naziruddin Ahmad’s call to remove Part IV altogether, he expressly argued that the Principles were both fundamental and directive in the sense that they “should be made the basis of all executive and legislative action.”

Other members of the Drafting Committee agreed. Alladi Krishnaswamy Iyer argued that while the Directive Principles were neither justiciable not enforceable, it would be “idle to suggest that any responsible government or any legislature elected on the basis of universal suffrage can or will ignore these principles.” The use of the word “can” (in addition to “will”) is telling: it suggests that it is simply not open to the legislature to ignore the Principles, whether it chooses to or not. But the only way in which this makes sense would be if the Court was to impose the legal fiction that we have discussed before – that the legislature has applied the Directive Principles in the making of laws (whether or not individual legislators consciously did so).

Evidence that what distinguished Part III and Part IV, in the mind of the framers, was a narrow conception of legal enforceability/remedies is evident from the debate over Draft Article 36. Originally worded as “every citizen is entitled to free primary education…”, it was amended to “The State shall endeavour to provide… free and compulsory education” – on the specific ground that the language of entitlement (which, of course, logically entails a remedy) was the language of fundamental rights. In addition, as Minattur points out, the fact that the word “enforceable” in Article 37 was actually brought in to replace the word “cognizable” (which is of much wider import), makes the argument compelling.

To these arguments, we can add a brief, structural point. The principle of non-superfluity is a standard interpretive technique, based on the assumption that the legislature does not waste its words. Thus, an interpretation that renders a part of a statute legally irrelevant is to be avoided, if possible. Surely the same argument applies with even greater force to the Constitution: ceteris paribus, an interpretation that renders an entire Chapter constitutionally irrelevant is to be avoided, if possible. The above arguments have been designed to demonstrate that at the very least, an interpretation that does not do so is feasible.

In sum, therefore, the text, history and structure of the Constitution suggest the following holistic reading of Article 37: the first part – the non-enforceability clause – is limited to just that: citizens may not move the Court seeking remedies for either breach of a directive principle, or for requiring Parliament to enact a directive principle into law. The second and third parts – that specify the fundamental nature of the Principles and the duty of the State to apply them –set out an interpretive role for the Principles to play in determining the legal meaning of statutes. Article 37, thus, is janus-faced: it carves out a sphere in which the Directive Principles have no role to play, and at the same time, carves out another sphere in which they do. I suggest, therefore, contra Mr. Seervai, that in In Re Kerala Education Bill, therefore, the Supreme Court was correct in turning away from its own earlier jurisprudence.

In the next post, we will turn to the Supreme Court’s jurisprudence in the aftermath of In Re Kerala Education Bill, to understand what interpretive role the Directive Principles have played in the judicial enquiry.

The Directive Principles of State Policy: An Analytical Approach – I: Conceptual Foundations

Part IV of the Constitution – containing the Directive Principles of State Policy (DPSPs) – has enjoyed a checkered history. Framed as a set of non-enforceable political prescriptions that the State has a “duty” to apply in the making of laws, it began life in the 1950s completely sidelined by the Courts. In 2014, however, virtually every socially-oriented constitutional or statutory judgment (and most Part III judgments as well) of the Courts contains an obligatory reference to the DPSPs. Quite often, this invocation is mere window-dressing, and doesn’t actually turn the case one way or another. Equally, there are times when it is clear that the DPSPs are playing an important role in the outcome of a case. The somewhat cavalier manner with which the Courts treat the DPSPs bears obvious similarities with Article 21: a boundlessly wide tent, floating untethered from the text and structure of the Constitution, which can accommodate whatever transitory judicial preference of a particular bench on a particular day.

Admittedly, it is too late in the day to go back to the position that Mr. Seervai advocated rather persuasively: the DPSPs, explicitly stated to be non-enforceable, ought to play no role whatsoever in constitutional adjudication. Given that they play some role, however, how ought they to be understood in a way that maintains fidelity to the Constitutional text and structure, and explains precedent adequately? In this series of posts, we will attempt to reconstruct the Supreme Court’s DPSP jurisprudence in a way that answers to those concerns.

A quick look at Part IV suggests a conundrum for interpreters. There seems to be no coherent principle that undergirds and explains the place of the DPSPs in the constitutional scheme. Social-democratic prescriptions about equitable sharing of natural resources and equal pay for equal work rub shoulders with the uniform civil code and the prohibition of cow slaughter. A reading of the Constituent Assembly Debates indicates that often, a principle that the framers were divided over, one which could not carry enough support in the Assembly to become a fundamental right, was relegated to Part IV as a way of appeasing its proponents.

This explains much. Over time, however, by focusing on some of the DPSPs to the exclusion of others (especially Articles 38 and 39), the Courts (primarily basing themselves upon Granville Austin’s image of the two wheels of a chariot), have imposed a pattern upon the seemingly haphazard DPSPs. They have theorised that Part IV comprises of “goals”, and Part III contains “rights” that the government must respect in pursuit of its goals (Kesavananda Bharati is perhaps the most famous case that posits this theory). This – according to the Courts – is the a priori distinction between Part III and Part IV, which ought to inform the judicial approach to issues involving fundamental rights and DPSPs.

In its own way, it is a familiar distinction. For instance, Ronald Dworkin argues that goals are particular end-states in the distribution of resources, while a right is something that the government is not permitted to infringe in its pursuit of its chosen goals. Yet the distinction is question-begging. What makes something a right or a goal? As Dworkin himself observes (see his Taking Rights Seriously), it depends on the constitutional scheme and the legal framework of the polity in question. Providing adequate nutrition to all its citizens can be framed as a goal, but it can equally well be framed as an individual right to food or health (and the South African Constitution does so). The goals/rights, or ends/means distinction, therefore, needs something else to motivate it.

There is another, equally obvious distinction. Part III embodies civil/political (or “first generation” rights), whereas Part IV enshrines socio-economic, second-generation guarantees. Yet this, again, is simply labeling. What is the relevant conceptual difference between these two categories, which would justify treating them differently in a Constitution? The civil/political and socio-economic distinction tracks another, deeper distinction, however, that does have a conceptual history to it: the difference between negative and positive rights.

In political theory, the difference is conceptualized in the following manner: first, negative rights involve freedom from governmental (or private) coercion that would prevent an individual from doing what she is otherwise minded to do; positive rights requires the government to take action in order to provide an individual something she cannot get for herself. Secondly – and relatedly – negative rights do not require policy choices; positive rights, on the other hand, directly implicate economic prioritization and budgetary allocations – i.e. “a broad redistribution of society’s resources”. The first distinction provides a theoretical ground for arguing that only negative rights are rights at all, properly called, since in a free society, the only form of protection that individuals should be entitled to is protection against coercion. The second provides a slightly more practical argument for the proposition that, whether or not socio-economic rights are rights in theory, since they involve the kind of economic and financial balancing that lies within the competence of the government, they ought not to be made available to individuals as enforceable claims in the manner of negative rights.

On a closer analysis, however, both these distinctions break down. It is controversial whether coercion is a meaningful way to separate categories of rights. As Cohen, Sen and others have argued, the distinction is premised on the distinctly non-neutral and ideologically coloured notion of freedom as non-interference. Even conceding that it is, however, so-called negative rights involve as much governmental action as positive rights. The right to property, for instance, is meaningless without an institutional system that involves a police force to prevent trespassing, and a legal structure to punish it when it does happen.

There is another way, furthermore, in which the coercion and action/inaction framework dissolves. Consider Cohen’s famous example: I wish to travel from Place A to Place B, but lack the money to buy a train ticket. I board the train nonetheless, and at some point, after the ticket-collector has found that I do not possess a ticket, the coercive apparatus of the State will be called upon to remove me from the train, and prevent me from traveling to where I want. In this way, Cohen argues, my lack of money violates my freedom of movement, even if freedom is defined strictly as absence of coercion. Poverty, thus, is as much a violation of negative liberty as is the State preventing me from free movement by placing me under house arrest.

The action/inaction dichotomy directly leads into the second alleged distinction: setting up and preserving a legal and institutional regime for the protection of negative liberties clearly involves economic and budgetary policy choices in much the same way as guaranteeing to all persons adequate food, or access to health. Thus, as the ICESCR Committee pointed out, “courts are generally already involved in a considerable range of matters which have important resource implications.” Cecil Fabre’s illustration of how an effective right to vote requires an effective system of voting, which in turn would implicate the government in making choices about allocation of manpower, resources and so on, nicely illustrates the argument. The negative/positive distinction, therefore, is unhelpful and ought to be discarded.

Lastly, it may be argued that positive rights are inherently vague and open-ended, and therefore only fit for resolution through the political process. This objection, however, fails for reasons of under-inclusiveness and over-inclusiveness. Public interest limitations on negative rights, found in Constitutions all over the world, including the Indian, are as open-ended as positive rights. On the other hand, the ESCR’s General Comment 12, on the right to food, is the model of clarity and precision in its definition of the right:

“… the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture.”

Therefore, in purely conceptual terms, there is good reason to deny a stand-alone distinction, independent of the particular framing history of the Indian Constitution, between Parts III and IV. Indeed, the history of the right to education – which moved from the Directive Principles to the Fundamental Rights, becoming Article 21A via a Constitutional amendment at the suggestion of the Courts, suggests the inherent fluidity of the distinction, and lends support to the proposition that, ultimately, the distinction is purely contingent and historical.

Having dealt with a potential red herring – a false dichotomy between negative, civil/political and positive, socio-economic rights – we have now cleared the ground for an investigation into the actual text, structure and drafting history of the DPSPs, and their relationship with fundamental rights, free of the assumptions that Courts have sometimes sought to impose (assumptions that, as we shall see, play little or no role in their actual jurisprudence). This investigation, and the examination of precedent in its light, shall be the subject of the next few posts.

 

Reservations, Equality and the Constitution – III: State of Kerala v N.M. Thomas and the Transformation of Equality

At the beginning of 1976, the meaning of the 14-15-16 equality code seemed to be reasonably well-settled. Twenty-six judges over an equal number of years had consistently affirmed that affirmative action was constitutional by virtue of the existence of Articles 15(4) and 16(4), both of which operated as exceptions to the equality and non-discrimination provisions of 15(1) and 16(1). Not just the outcomes, but judicial reasoning as well, as we have seen, relied upon a colour-blind vision of equality, one that considered any kind of classification on the bases of prohibited categories (race, religion, sex etc.) as presumptively unconstitutional. This idea, in turn, was grounded upon the belief that in distributing a benefit or burden, government must treat individuals as  individuals, and not as members of groups.

The lone dissenting voice had been Justice Subba Rao’s, in Devadasan. And in 1976, a seven-judge bench, in State of Kerala v. N.M. Thomas, adopted that view in full, and in doing so, entirely repudiated existing precedent. As a transformative decision, N.M. Thomas stands alongside Kesavananda Bharati and Menaka Gandhi in our constitutional history: it not only changed the constitutional understanding of reservations, but in doing so, transformed the deep foundations of the idea of equality that the Constitution commits us to.

In N.M. Thomas, a governmental order granted provisional promotions to members of Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion, along with a two year grace period for them to gain such qualifications. This was challenged. The key contention of the aggrieved parties was that the classification was clearly void under Articles 16(1) and (2), and not covered by Article 16(4). Under existing precedent, this ought to have been a simple case. If Article 16(4) did not apply, then special provisions for SCs and STs clearly did violate Articles 16(1) and (2).

Not so, held the Court. In Paragraph 31, the Chief Justice Ray, writing the judgment of the Court, held:

“The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. “

Consequently:

“The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration.” (Para 37)

The Court thus holds that Article 16(1)’s conception of equality itself includes remedial action to ensure due representation for hitherto excluded classes. No longer, then, is equal treatment to be accorded to individuals; the Court adopts the group-subordination idea of equality, one that locates the site of historical discrimination as the group, and seeks to remedy that by targeting groups.

That said, the bar of 16(2) remained, which expressly listed caste as a prohibited basis of classification. The Court’s answer was to accept that 16(2) would instantaneously void such classification (Paragraph 37), but then to perform a sleight of hand (one that would be repeated subsequently) by holding that Scheduled Castes were not the same as castes (under 16(2)), and could fairly be called “backward classes” within the meaning of 16(4) (Para 43) This raises a troubling issue for those situations where this sleight of hand will not be available to the Court. What, for instance, can the Court say if Government wishes to make special provisions in employment for women? 16(2) expressly prohibits classification on the basis of sex, and purely on the logic of N.M. Thomas, 16(2) continues to operate as an absolute bar.

In any event, the fundamental shift in N.M. Thomas is this: 16(4) no longer operates as an exception to 16(1), allowing the government limited powers to do what it would otherwise be prohibited from doing by virtue of 16(1), but now exists as “one of the methods of achieving equality embodied in Article 16(1).” (Paragraph 46) But this necessarily involves a shift in the nature of equality itself, because until now, 16(1) and 16(4) were considered to embody differing visions of equality: 16(1) was about individuals, and 16(4) – textually – about remedial measures targeted at historically discriminated groups. And now it is that latter logic that governs both 16(1) and 16(4).

On what basis does the Court deal with precedent in such cavalier fashion? The majority does not say, and it is in Justice Mathew’s concurring judgment that we find an articulate defence of the new principle of equality. Drawing upon sources as diverse as Brandeis and Laski, Justice Mathew conceded that Article 16(1) was about equality for individuals – equality of opportunity. But equality of opportunity, he argued, meant that in distributing a benefit or burden, the State must set those criteria for selection that “people from all sections of the society have an equal chance of satisfying them.” (Paragraph 84) To sharpen the idea, he drew upon Bernard Williams’ famous example: in a certain society, the most prestigious role is that of the warrior, which requires great physical strength. Hitherto, recruitment for this role has been – formally – solely from the wealthy/propertied classes. A reform movement succeeds in removing the formal barrier in favour of equal competition. Nothing changes, however, because the rest of the population is so undernourished by reasons of poverty, that they do not pass the physical requirements of the recruitment test. In other words, the criteria for selection has been changed from wealth to strength, but it so happens that – for obvious reasons – the poor also happen to be weak.

For Justice Mathew, this is not equality of opportunity. According to him: “To give X and Y equality of opportunity involves regarding their conditions, where curable, as themselves part of what is done to X and Y and not part of X and Y themselves.  Their identity for this purpose does not include their curable environment, which is itself unequal and a contributor of inequality.” (Paragraph 87)

This is a crucial philosophical point (and the connection to Amartya Sen will be obvious to everyone). Much turns upon what exactly “where curable” and “curable environment” mean, but broadly, Justice Mathew’s point is that equality of opportunity makes no sense without taking into account the structural conditions into which people are born and grow up in, and which define, limit or otherwise profoundly affect the formulation and achievement of their goals.

Justice Mathew then reconciled his argument that Article 16(1) was about individual equality with upholding group classification: any classification, he argued, must group together individuals sharing certain characteristics. Categorization into Scheduled Castes/Tribes, then, was no more than a convenient method for identifying individuals who did suffer from those structural conditions that required affirmative action. (Paragraph 108) Crucially, for Justice Mathew, Article 16(1) is not about group equality. It is about effective individual equality, which is to be achieved by using the method of group-identification. The obvious problem with this is the two-pronged evil of over-inclusiveness and under-inclusiveness. As soon as you abandon separate analyses of each individual case for group-categorization, it is inevitable that certain members of your chosen group will not be “backward” (over-inclusiveness), and certain members who do not fall within the group will be “backward” (under-inclusiveness). This makes the definition of the “group” absolutely critical, and as we shall see in subsequent cases, it is this issue that would emerge as a political and constitutional battleground. In N.M. Thomas, however, Justice Matthew was oddly unconcerned with this very real problem.

Justice Krishna Iyer, in his concurring opinion reiterated the shared vision of equality embodied in Articles 16(1) and 16(4), and added a further ground for the argument by invoking Article 46, of the Directive Principles. While the Directive Principles are, of course, unenforceable, Justice Iyer argued that the interpretation of Articles 16(1) and 16(2) must be such that gives effect to Article 46. In this way, by invoking the Directive Principles as background, structuring values, helping us select which conception of equality Article 16 embodied (colour-blind, or group-subordination, or something else), Justice Iyer provided the constitutional grounding to Justice Mathew’s philosophical vision of equality.

Justice Fazl Ali, in his concurrence, moved away from Justice Mathew’s individual-centric notion in categoric terms. While adopting the same philosophy of equal opportunity, he held:

“Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same.” (Paragraph 193)

This, as we have seen, is the classic statement of the group-subordination theory of equality. He then adopted Justice Iyer’s argument about the interpretation of Articles 14 and 16 being determined by the Directive Principles (Paragraph 200). Note, however, that Article 46 categorically refers to weaker “sections” of society. If, therefore, the interpretation of Article 16(1) is grounded in Article 46, then it cannot but be taken to be embodying the principle of group-subordination.

The last concurring judgment was Justice Beg’s, but he only concurred in the judgment, siding with the majority on the ground that the present case was covered by Article 16(4). On the reasoning, he disagreed, sticking to the past interpretation of 16(4) remaining an exception to 16(1).

Justices Gupta and Khanna dissented. Justice Gupta held that Scheduled Castes were, indeed, “castes” within the meaning of 16(2); and that any event, the manner of distinction was not one that was permitted by 16(1). In a detailed dissent, Justice Khanna reaffirmed that 16(4) was an exception, and the legitimating ground for reservations for SCs and STs was found in, and limited to, 16(4). In particular, he held:

“There is no scope for spelling out such preferential treatment from the language of Clause (1) of Article 16 because the language of that clause does not warrant any preference to any citizen against another citizen.” (Paragraph 57)

Which, as we can see, if framed in explicitly individualistic language. Hammering the point home, he observed in the very next paragraph:

“Equality of opportunity in matters of promotion must mean equality between members of the same class of employees and not equality between members of separate, independent classes.” (Paragraph 58)

In other words, an express rejection of the group subordination principle. And to make it even clearer, he went on to hold:

“What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as individuals in matters relating to employment or appointment to any office under the State.” (Paragraph 60)

N.M. Thomas, thus, leaves us with a deeply divided Court, one in which each of the seven judges wrote his own opinion, and came to deeply divergent conclusions on a number of issues. Let us try to sum up:

(1) A majority of five judges concurred in the judgment, and two dissented

(2) A majority of four judges held that 16(4) is not an exception, but an “emphatic restatement” of 16(1) – and thus, 16(1) itself permits reservations and preferential treatment

(3) Two judges – Fazl Ali and Krishna Iyer JJ – by invoking Article 46, specifically adopted the group-subordination principle of equality in their interpretation of Article 16(1)

(4) Four judges (or five, depending on how one interprets Ray CJ’s judgment, which seems to adopt both principles) – that is, Mathew and Beg JJ.’s majority opinions, and Khanna and Gupta JJ.’s dissents – while coming to different conclusions, nonetheless maintained the individual-centric view of Article 16(1)

In essence, therefore, while N.M. Thomas changes the idea of of equality under 16(1), a bare majority upholds the deep philosophy of individual equality that forms the ultimate philosophical basis of it. This, essentially, makes Justice Mathew’s opinion controlling. The point of the Article 16 scheme – after Thomas, therefore – is not to achieve group equality qua groups, but to achieve individual equality, and the use of groups is a convenient mechanism to achieve the end goal of individual equality. This, indeed, comports well with the founders’ vision (as we have seen in previous posts) of an end-goal of a society in which class and other such markers become entirely irrelevant. What Justice Mathew understands is that to achieve a colour-blind society, you might need to take colour into account on the way, in order to ameliorate the continuing negative effects of structural inequalities; the arguments are not novel. Feminists have regularly argued that the end-goal of a society in which gender is irrelevant can only be achieved by taking gender into account on the way, and bringing women to a position where formally making gender irrelevant really means actually making gender irrelevant; and the same with race. What is crucial to note is that none of these arguments lose their ultimate goal of emancipating the individual. Classification is a means to an end, not an end in itself.

The distinction is important, and not just simply to understand what kind of equality our Constitution commits us to, and whether it is a vision that we find inspiring and worth believing in. It is also important because – as we shall see – debates about identifying beneficiary groups (the Mandal Commission and beyond), the bitter fight over the “creamy layer”, and ultimately, how far we are willing to go with reservations (for instance, over-inclusiveness and under-inclusiveness aren’t issues at all if your goal is objective is group equality) – depend upon whether our goal is to make groups equal to each other (and thus, reinforce group identity), or to make individuals equal to each other (and thus, ultimately, dissolve group identities). After N.M. Thomas, the latter view had an edge. In subsequent posts, we shall examine how it would fare in the fraught and divided coming years.

Free Speech and Newspaper Regulation – IV: Democracy and Freedom in Mathew J.’s Bennett Coleman Dissent

To conclude our discussion of the newspaper regulation cases, let us turn to Mathew J.’s dissent in Bennett Coleman. This opinion is important not only because it is closely reasoned and rigorously argued, but also because it represents a line of thought that the Majority rejected in both Sakal Papers and Bennett Coleman, and therefore illustrates the choice that the Court made in clearer manner.

We have already discussed Mathew J.’s opinion to the extent that he agreed with the Majority about the constitutionality of the Newsprint Order (see paragraphs 105, 108). Mathew J. then went on to discuss the Newsprint Policy which, as we recall, fixed a cap of ten pages for the calculation of newsprint quota, even for those dailies that were more than ten pages long. The important difference between the analysis of Mathew J. and that of the majority opinions in Sakal Papers and Bennett Coleman is that unlike the latter, who took the existing market conditions as something akin to a given, background feature of the environment, Mathew J. treated them as something imposed by deliberate governmental policy, and examined them from a historical perspective. He found that before the 1972 Newsprint Policy, newsprint allocation was based on the page level of 1957 and the circulation levels of 1961-62; that, as a matter of fact, this disadvantaged newspapers that were established after 1962; and that one of the objectives of the Newsprint Policy was to remedy this disadvantage. (Paragraph 112)

Mathew J. then entered into an analysis of the philosophical foundations of free speech. In line with judgments both before and after (see, for instance, Hamdard Dawakhana and Sakal Papers), he concluded that one of the crucial purposes that free speech served was that of sustaining and maintaining democracy. However, at this point, Mathew J. drew the opposite inference from that drawn in Sakal Papers: for a democracy to thrive, and to be meaningful in any sense, he observed, there must be a multiplicity of ideas, viewpoints and arguments available to the public, in order to achieve the ideal of an informed, aware electorate. (Paragraph 123) In other words, the “marketplace of ideas”, an image so beloved of John Stuart Mill and Oliver Wendell Holmes, would be a chimera if a few newspapers held a monopoly over the field.

Mathew J. then also observed:

“It is no use having a right to express your idea, unless you have got a medium for expressing it.” (paragraph 123)

 It is, of course, not entirely clear what work is being done here by the phrase “no use”; in the context of the entire judgment, however, it is safe to say that Mathew J. understood the freedom of speech and expression to include reasonable access to a medium of expression. In other words, directly contrary to Sakal Papers and Bennett Coleman, Mathew J. held that lack of access to the newspaper market because of insufficient means constituted an unfreedom in the sense of Article 19(1)(a) (for philosophical arguments justifying this stance, see our first two posts on newspaper regulation).

Mathew J. therefore concluded, in two paragraphs that deserve to be quoted in full:

“What is, therefore, required is an interpretation of Article 19(1) (a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.” (Paragraphs 126 – 27)

Lastly, to buttress his opinion, Mathew J. cited a series of American authorities (in particular, Mikeljohn and Emerson) as well as the Directive Principles of State Policy, to argue that the right embodied in the free speech clause was not only the right of the individual to express herself, but also the right of the society to be informed, and to have access to, as wide a range of relevant and important ideas as possible. (Paragraphs 135 – 141) He found that the impugned Policy was designed to deepen and enrich the freedom of speech by ensuring a broadened and diversified reach to the general public. Consequently, Mathew J. dissenting in upholding the Policy.

Thus, in Mathew J.’s opinion, there emerges a complex vision of the philosophical ideas underlying Article 19(1)(a). Mathew J. finds three separate political ideals that characterize and justify the free speech clause: free speech is an individual right, the right of a person to express herself; it is a social good, instrumental in upholding democracy; and it is a community right, the right – in simple terms – to “hear”. Yet Mathew J. doesn’t stop here, but elaborates upon each of these ideas. His view of the individual right is one that assumes an ancillary right of reasonable access, and treats the market not as a background condition, but as an infringement of freedom. His vision of democracy is a substantive vision that goes beyond merely formal ideas, and presupposes an environment in which there is a genuine spread and proliferation of diverse and opposing ideas. And his sense of the community right departs from ideas of passive consumers of ideas to a vision of an active, civic-minded citizenry that deserves access to a genuinely wide range of thought, argument and debate. Nonetheless, that is not the view the Court takes, in Sakal or in Bennett Coleman. Which of the two visions is a better vision is a matter of individual judgment, but at least in the context of newspaper regulation, Mathew J.’s thought has not been accepted. Yet that might not be the end of the story: in subsequent posts, we shall see whether a version of Mathew J.’s arguments play a role in the context of election cases and cases involving the right of reply; and whether, in light of those decisions, the newspaper regulation judgments might now be anomalous – or at the very least, debatable.

Let us now sum up the state of play: our discussions of the Court’s newspaper regulation cases have shown us that the word “freedom” in Article 19(1)(a) is not a value-neutral term. It presupposes a series of political choices: in particular, a choice between those limitations upon a person’s scope of action that are treated as background conditions, under which he must exercise his right to freedom of speech – and therefore, do not count as limitations upon freedom – and those limitations that are treated as infringements of freedom, and therefore must be justified under Article 19(2). For example, let us – for the purposes of argument – follow Hayek in defining “freedom” strictly as “intentional interference by other human beings”. Then, while the fact that my bone-structure precludes me from flying unaided, and my being kept locked in a prison cell, are both instances of some limitation upon the scope of action I can undertake, the former is simply an incapacity, while the latter is unfreedom. Our search for such a principle that would justify the Court’s choices in the five important Supreme Court cases through the years – Express Newspapers, Sakal Papers, Bennett Coleman, Indian Express Newspapers and Express Publications – proved only partially successful. While it was clear enough, in each individual case, where the Court drew its line, we could not identify a general rule (such as, e.g., a Hayekian definition of freedom as intentional interference by human beings) that was guiding the Court in its decisions. Intellectually, Mathew J.’s dissenting opinion might provide us the most satisfactory set of principled arguments underlying, explaining and justifying Article 19(1)(a) in the context of newspaper regulation; for now, however, Mathew J.’s opinion remains just that: a dissent.