Tag Archives: horizontal rights

Horizontality under the Indian Constitution: A Schema

According to the classical model, constitutional rights are deemed to regulate the relationship between the individual and the State, acting as a check upon State power, and enforceable “vertically” by the individual against the State. They are not supposed to apply to interactions or transactions between private parties. Such interactions are to be regulated by the common law, or by legislatively enacted statutes. There are a number of theories for why the idea of rights evolved in this manner. Critical theorists such as Seyla Benhabib argue that the conception of rights arose out of the American and French revolutions, both of which were led by a rising bourgeoisie class that wanted to wall off a “private” economic and personal domain against absolutist State interference; other legal historians argue that at the time that Constitutions were first drafted, the common law was deemed sufficient to protect whatever rights individuals might have had against each other. Be that as it may, over the last thirty years, there has been a growing consensus among Constitutional courts that a purely vertical model of constitutional rights is insufficient – whether this is because of growing private power and the retreat of the welfare State, feminist critiques of the public/private distinction, an expanded conception of rights, or some combination of all three. Constitutional courts, therefore, have developed various ways in which to apply rights “horizontally” – i.e., to apply rights in transactions where private actors are involved in some way.

Like its counterparts in the United States, Canada, South Africa and Germany, the Indian Supreme Court has had occasions to engage with horizontality, and to craft various kinds of remedies in such cases. However, there is a significant lack of clarity about the different ways in which the Indian Supreme Court has invoked horizontality, and the constitutional questions that need to be resolved in such cases. In this essay, I will attempt to schematize the way in which the Court has treated horizontality, and highlight some of the key unresolved issues in the Court’s jurisprudence.

Any systemtisation of horizontality must address two issues. First, against whom is the remedy being sought? While the ultimate goal of horizontal rights litigation is to modify the relationship between private parties, this may be done either by arraigning the private party directly as a respondent, or by indirectly attempting to reach private action through litigation against the State, which is aimed at forcing the State to act in order to change the private behaviour in question. And secondly, what is the remedy being sought against? This second enquiry proceeds parallel to, but is not identical with, the first. What is impugned might be private action, or it might be State action that allows certain kinds of private action which are at issue.

With this in mind, consider the following table as a prelude to the discussion, with the remedies arranged on a rough, intuitive spectrum of vertical —> horizontal:

Type of Remedy

Respondent Cause of Action Case(s)
Private body assimilated to State under Article 12 Private actor Private act (classified as State act) Pradeep Kumar Biswas vs Indian Institute of Chemical Engineering, (2002) 5 SCC 111.
Positive Rights enforceable against the State State State (in)action Vishaka vs State of Rajasthan, (1997) 6 SCC 241; Medha Kotwal Lele, (2013) 1 SCC 311
Indirect horizontality Private actor State law/common law R. Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632.
Direct horizontality Private actor Private act IMA vs Union of India, (2011) 7 SCC 179; PUDR vs Union of India, (1982) 3 SCC 235.

 

1) Assimilation under Article 12: Article 12 of the Indian Constitution includes within its definition of State “the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” The Supreme Court has held that certain private bodies, in their structure or function, are so closely connected to the State, that they qualify as “other authorities” within the meaning of Article 12, and are consequently equated with the State for the purposes of fundamental rights enforcement. Indian cases have historically fluctuated between two tests for determining the scope of “other authorities” under Article 12: a control test (or, a structural test), which looks at the extent to which the private body is under the control of the State; or a functional test, which asks whether the private body is performing a function that could fairly be called a State function. In Pradeep Kumar Biswas vs Indian Institute of Chemical Engineering, the Supreme Court settled the debate in favour of the control test. It held that only bodies that were “functionally, financially and administratively dominated by or under the control of the Government” came within the ambit of Article 12. I have explored and critiqued the theoretical foundations of this debate elsewhere. For the purposes of this discussion, under this approach, what is ultimately being challenged is a private act of a private respondent, but both the act and the party are deemed, by a legal fiction, to be equivalent to the State. Consequently, this is the most “vertical” of the approaches that ultimately seek to hold a private body liable for rights violations.

2) Positive rights enforceable against the State: Classically, fundamental rights have been understood to be negative in nature – i.e., they act as constraints upon what the State can do, but they do not impose a positive obligation upon the State to act in any particular way. This understanding has been critiqued extensively by legal scholars as well as judges. The United States cleaves to the classical negative approach, as exemplified by the case of DeShaney vs Winnebago, where the Supreme Court held that no cause of action lay against a State agency’s negligent failure to prevent child abuse by a custodial parent. Internationally, however, this position has not been accepted. In interpreting the ICCPR, the United Nations Office of the High Commissioner for Human Rights has stated that a right casts a parallel, composite set of duties upon the State: the duties to “respect, protect, and fulfill” that right. The duty to respect tracks the classical conception of non-interference, while the duty to protect requires the State to protect individuals against human rights abuses, no matter who might commit them. In other words, the State’s failure to reasonably prevent human rights violations by private parties amounts to an abrogation of its duty to protect.

The Supreme Court applied this conception in Vishaka vs State of Rajasthan, the Supreme Court held that the State’s failure to pass a sexual harassment legislation for regulating public and private workplaces amounted to a violation of the Petitioner’s constitutional rights under Articles 14, 19 and 21. The Court issued a set of guidelines, now famously known as the Vishaka Guidelines, which were meant to act as a temporary stand-in until the legislature framed a sexual harassment law. Fifteen years later, in Medha Kotwal Lele vs Union of India, the Supreme Court found that many states had still not implemented the Guidelines, and consequently, directed them to do so within a period of two months. What is crucial to note is that in both Vishaka and Medha Kotwal Lele, what was at issue was both public and private discrimination, but that in both cases, the respondent was the State. In other words, what the Court held was that individuals have Articles 14, 19 and 21 rights against the State which, in turn, cast an obligation upon the State to regulate private actors in a manner that ensures that these rights are not violated.

Conceptually, it is crucial to distinguish the logic of Vishaka from the famous (or notorious) proliferation of the Supreme Court’s Article 21 jurisprudence. In most of the cases where the Court has interpreted Article 21’s guarantee of the right to life and personal liberty in an expansive manner, it has done so in order to repair certain omissions or problems with its acts (e.g., the right to livelihood developed in Olga Tellis was in response to State evictions, the right against solitary confinement was in response to the acts of prison wardens, and so on). These cases are about the duty to fulfill – that is, the State is required to undertake all acts that ensure that a negatively-worded right is nonetheless effectively exercised by rights-bearers. In the context of horizontality and Vishaka, however, what was at issue was the duty to protect, which focused upon the State’s abrogation of its duties via its failure to regulate private actors.

While Vishaka is a landmark judgement, the Court is yet to explicate clearly the model of positive duties that it is using. General Comments to the ICCPR, for instance, clearly specify what the corresponding duties entail in cases relating to the right to education, or the right to food. This lacuna is something that the Court will, hopefully, address by developing a rigorous and constitutionally justified account of positive duties.

3) Indirect Horizontality: Indirect horizontality refers to a situation where the respondent is a private actor, acting in its capacity as a private actor. The challenge, however, is not to the respondent’s acts, but to the law that the respondent relies upon to justify its acts. One classic example of indirect horizontality is the famous case of New York Times vs Sullivan, where the American Supreme Court found that the common law of defamation, as applied by the state Courts of Alabama against the New York Times, was inconsistent with the constitutional guarantee of the freedom of speech and expression. Consequently, in private defamation proceedings between Sullivan and the New York Times, the Court modified defamation law in order to bring it in line with the Constitution, and exonerated NYT. Similar to this, Canadian Constitutional jurisprudence casts an affirmative duty upon the Court to develop common law in line with the Constitution. The most famous example of indirect horizontality, however, is the German Constitutional Court’s “radiating effect”. According to the famous Luth case:

“…the Basic Law is not a value-neutral document .. Its section on basic rights establishes an objective order of values, and this order strongly reinforces the effective power of basic rights … Thus it is clear that basic rights also influence [the development of] private law. Every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit.”

In other words, basic rights radiate outwards beyond the Constitution, in a manner that affects private law and private adjudication.

In R. Rajagopal vs State of Tamil Nadu, the Supreme Court adopted indirect horizontality in the context of both defamation and privacy, which – until that time – had remained common law torts. Upon the lines of New York Times vs Sullivan, it modified the common law of defamation, adopting a stricter threshold for the plaintiffs, in order to bring it line with Article 19(1)(a) of the Constitution. It also referred to Article 21 in order to strengthen the individual’s right to privacy against other individuals. Notice that in Rajagopal, the respondent is the State. That, however, is only because it so happened that it was the officials of the State who brought defamation and privacy claims against the appellant (much like how, in Sullivan, Sullivan himself was the police commissioner of Montgomery, Alabama). The logic of Rajagopal, however, is one of indirect horizontality – i.e., it is not constitutionally suspect private action that is directly being implicated, but the law that authorises that action is what is at issue.

Cases involving indirect horizontality often require a delicate balancing act. This is because action that is off-limits to the State is often completely acceptable when it comes to private parties. Therefore, laws that merely permit, or facilitate, private arrangements that individuals are entitled to enter into, but the State is not, should not be invalidated or modified. For instance, in Zoroastrian Cooperative vs District Registrar, the Supreme Court held that the members of a Cooperative Society had the freedom and the right to associate with whomever they pleased, and that this freedom overrode the right of the individual against non-discrimination on the basis of caste, race, religion etc. Consequently, the Court upheld the impugned legislation, as well as the bye-laws, that permitted and authorised the Society to exclude people purely on the basis of religion.

As in the case of positive duties, the Court is yet to clarify that it is incrementally developing common law in accordance with constitutional values. It is important for the Court to develop a model that specifies the extent to which it is permissible for the Court to invoke background constitutional values during the course of private law adjudication. Different jurisdictions such as the United Kingdom (with respect to the Human Rights Act), New Zealand, and Germany all allow varying ranges of flexibility to Courts to achieve the goal of harmonising common law and a background rights-based legislation. The Indian Supreme Court is yet to explicate a similarly lucid account.

4) Direct Horizontality: Lastly, direct horizontality refers to a situation where the private act of a private party is challenged on the touchstone of the Constitution. The Indian Constitution has three specific provisions that outlaw horizontal rights violations. Under Article 15(2), no citizen may be restricted from access to shops, public restaurants, hotels and places of public entertainment, as well as places of public resort dedicated to the use of the general public, on grounds only of religion, race, caste, sex, place of birth, or any of them. Article 17 prohibits the practice of untouchability. Article 23 prohibits traffic in human beings, as well as bonded labour.

In IMA vs Union of India, the Supreme Court referred back to the Constituent Assembly Debates to hold that the word “shops” was of very wide import, and referred not merely to a physical “shop”, but to any arms-length provision of goods or services on the market. In that case, the Court held that schools came within the meaning of shops for the purposes of Article 15(2), and that consequently, private schools were subject to the non-discrimination guarantees under the Constitution. At the heart of the Court’s reasoning was the understanding that the most pervasive forms of discrimination in Indian society had been horizontal, and took the form of excluding a section of society from the economic and social mainstream through boycotts and denial of access.

With respect to Article 23, in PUDR vs Union of India, the Supreme Court did something similar, holding that “begar” under Article 23 did not simply refer to “bonded labour” in its technical sense, i.e., inter-generational captivity, but “every form of forced labour.”

 

This line of reasoning, however, remains underdeveloped. Apart from Article 23, when it comes to Article 15(2), the Court is yet to provide a rigorously developed understanding of the scope of the word “shops”. It is also yet to analyse the exact meaning of the word “access”. Is “access” limited to situations where private parties refuse to transact on the basis of a constitutionally prohibited marker, or does it extend to all kinds of economic interactions between parties, including – to take a recent controversy – hiring and firing decisions?

Conclusion: In sum, at present, we have a fairly detailed and layered jurisprudence of horizontality. A few things, however, are important. The Court must conceptually distinguish between the different types of horizontality, based upon the identity of the actors, as well as the nature of the action that is being challenged. Once that is done, the Court must also develop these distinct models in a doctrinally consistent and justified manner. At present, the only issue that the Court has definitively settled is the State action issue under Article 12. Beyond that, the following questions remain open:

(1) What is the scope of the positive duties upon the State under Part III, and the extent to which the State must regulate the conduct of private actors as an aspect of those positive duties? Different jurisdictions have given different answers thus far.

(2) To what extent, and under what circumstances, may the Court invoke indirect horizontality to develop private law, in proceedings between private parties, in a manner that is consistent with Constitutional values? How are the rights of the parties to be balanced in such cases?

(3) What is the scope of direct horizontality under Article 15(2), with respect to the words “access” and “shops”?

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Filed under Horizontal Rights

The Supreme Court’s Make-Up Artists Decision and its Discontents

A couple of weeks ago, in a judgment that made headlines, the Supreme Court struck down a clause of the Cine Costume Make-Up Artists and Hair Dressers Association bye-laws that prohibited women (and anyone who had not spent five years in the State of Maharashtra) from becoming members. The clause effectively operated as a ban on women being employed as make-up artists in the 2 billion-dollar film industry, and there is no doubt that it was a highly regressive, patriarchal and discriminatory provision. Nonetheless, for many reasons, the judgment of the Court is deeply problematic, and requires close scrutiny.

Before the Court, it was argued that the impugned clause violated Articles 14, 19(1)(g) and 21 of the Constitution. Ordinarily, this would be a constitutionally impeccable argument. There was, however, one problem: the Association is a private entity, and private parties are not ordinarily subject to Part III of the Constitution. The petitioner’s claim was, in effect, a claim for the horizontal enforcement of rights.

It is clear that under the present constitutional regime, the Court could not have brought the Association under the ambit of Part III by holding it to be “State” under Article 12. Under the Pradeep Kumar Biswas test, a private entity must be under the “functional, financial and administrative control” of the State for Article 12 to apply, and those stringent conditions were not fulfilled in this case. An alternative approach, which holds that private bodies performing public functions (in this case, employment) are subject to public law obligations, remains embryonic in Indian Constitutional Law. While impliedly endorsed by Justice Mohan in his concurring opinion in Unnikrishnan, it has never been explored in detail by the Court. The Court chose not to explore it here either, holding categorically that Article 12 was not attracted, and leaving it at that (paragraph 38).

Instead, the Court reasoned as follows: it noted that the Association was a registered trade union under the Trade Unions Act of 1926. Under the Act, registered trade unions could not frame rules that were inconsistent with the Act. In particular, the Court observed that Section 21 of the Act, which stipulated the rules for membership of the Trade Union, stated that “any person who has attained the age of fifteen years may be a member of a registered Trade Union…” (rather irrelevantly, the Court also referred to Section 21A, which provided for the disqualification of office-bearers of the Trade Union).

The Court then noted: “The aforesaid provisions make it graphically clear that Section 21A only prescribes the age and certain other qualifications. The aforesaid statutory provisions do not make a distinction between a man and woman, and rightly so.”

Presumably, this is a typographical error, and the Court was referring to Section 21, not 21A (because there was no dispute at all about the disqualifications of office-bearers).

On the other hand, Clause 4 of the Association’s by-laws stated:

Membership of the Association shall comprise of Make-up men, Costume men, and Hair Dressers who were admitted as members by the Association…”

Clause 6 stipulated the five-year Maharashtra domicile requirement.

The Court then held: “Clause 4, as is demonstrable, violates Section 21 of the Act, for the Act has not made any distinction between men and women.”

In other words, because under Section 21, age was the only qualification for membership of a trade union, the Association’s by-laws, by prescribing the additional requirements (on the basis of gender and domicile) violated the statute, and were therefore liable to be struck down.

There is, however, one significant flaw in the Court’s reasoning, and that is the wording of Section 21. In relevant part, that Section reads:

“Any person who has attained the age of fifteen years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary…”

On a simple grammatical reading, it is abundantly clear that the Trade Union can make any set of rules over and above, or opposed to the fifteen-year age requirement. The Court completely ignores the latter part of the sentence. Even worse, it reads it out altogether: it is as if those eleven words never existed.

Apart from being a case of bad statutory interpretation, the conclusion is utterly ludicrous, because on the Court’s reading of the statute, any person above the age of fifteen has a statutory right to become a member of any trade union registered under the Trade Unions Act. On the court’s reading of the statute, a factory-owner would have the right to become a member of his factory’s trade union. This would be a… strange outcome.

The Court then notes:

“It is clear to us that the clause, apart from violating the statutory command, also violates the constitutional mandate which postulates that there cannot be any discrimination on the ground of sex. Such discrimination in the access of employment and to be considered for the employment unless some justifiable riders are attached to it, cannot withstand scrutiny. When the access or entry is denied, Article 21 which deals with livelihood is offended.”

 While the constitutional mandate does indeed postulate that there cannot be any discrimination on the ground of sex, the Court forgets that the constitutional mandate is addressed to the State, as is Article 21’s guarantee of the right to livelihood (as part of the right to life). The exception, of course, is Article 15(2), which proscribes horizontal discrimination in certain specific areas. Previously on this blog, it has been argued that, in light of constitutional history, Article 15(2) ought to be given an expanded interpretation, but the Court does not engage in that analysis here. It blithely assumes that the non-discrimination and Article 21 guarantees are applicable to private associations, and closes by holding:

“A clause in the bye-laws of a trade union, which calls itself an Association, which is accepted by the statutory authority, cannot play foul of Article 21.”

 Reading the Court’s opinion in its best light, it would seem that the proposition of law which emerges is that a private association registered under a statute cannot violate constitutional norms in its membership requirements. The logic would be that statutory registration amounts to State sanction, and the State cannot sanction or endorse an activity that runs directly contrary to the provisions of the Constitution (something akin to the American case of Shelley vs Kraemer, where the Court refused to enforce a racially-restrictive covenant, on the ground that that would amount to enforcing an unconstitutionality, while holding that it had no power to strike down the private covenant). This might be understood as a case of indirect horizontality, forms of which are prevalent in jurisdictions such as South Africa and Germany. If it is a case of indirect horizontality, though, that argument needs to be spelt out and provided a proper analytical foundation, which the Court fails to do.

The argument from indirect horizontality, however, runs into a significant problem: the precedent of the Zoroastrian Cooperative Case, in which a housing society registered under the Cooperative Societies Act was permitted to discriminate on the basis of religion, on the grounds of the freedom of association. Previously on this blog, we have argued that Zoroastrian Cooperative is better understood not as an Article 19(1)(c) freedom of association case, but as an Article 29 minority-rights case, but here the Court makes no effort to distinguish what appears to be directly contrary precedent, and does not even acknowledge the tensions between Article 19(1)(c)’s guarantee of the freedom of association, and enforcing membership requirements on private associations.

In fact, the justification that we have provided above leads to some strange conclusions. Suppose I want to start a society for the Protection of the Rights of Besieged Men, and have it registered under the Societies Registration Act (or analogous legislation). Membership is limited to men. Is that a violation of the sex-discrimination clause of the Constitution? Or suppose I want to start a society for the Protection and Promotion of the Jedi Faith, under the by-laws of which, members must forswear prior allegiance to all organised religions, and embrace the Jedi faith. Will that also be a violation of the Constitution’s religious non-discrimination clause? The tensions between the freedom of association and non-discrimination are acute, and require a scalpel rather than a sledgehammer. Many jurisdictions have civil rights legislation that try to draw a balance by prohibition discrimination, for instance, within the workplace, but not in private associations like the ones described above.

In the absence of an overarching civil rights act in India, admittedly, the judiciary is tasked with the responsibility of interpreting laws and constitutional provisions to avoid egregious discrimination with very real consequences, such as the impugned clause in the Make-Up artists case. But in doing so, it ought not to lose sight of grounding its decisions in defensible legal reasoning. In the Make-Up artists case, the Court spends reams of pages quoting international declarations, feminist literature, and previous cases declaiming gender equality in ringing phrases, but – as we have seen – spends no time in working through the tangled legal issues that actually arose for its consideration. As a result, we have a wonderful outcome, but no reasoning. That makes for good headlines, but bad law.

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Filed under Exclusionary/Restrictive Covenants, Freedom of Association, Non-discrimination

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.

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