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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Basic Structure – III: “We the People”, Higher Lawmaking and the Idea of Dualist Democracy

In his written submissions in Kesavananda, Mr. Palkhivala argued that the “ultimate legal sovereignty of the people” could not be vested in the Parliament. This draws support from the preambular phrase – “We the People… do hereby enact, adopt and give to ourselves this Constitution” – suggesting that the Indian Constitution is meant to embody a form of social contract between the people of India. The contractarian theory is premised upon the idea that institutions of a political democracy (including the rule of the majority) are the result of a consensus between free and equal individuals who have joined together to form the State. The basis of democracy, therefore, is the equal freedom of sovereign democratic citizens. The concept of “freedom” contains within it not only equal political participation, but also – as Rawls argues – basic rights and liberties such as the freedom of thought and conscience, the rule of law, etc (see Rawls, A Theory of Justice, p. 440). Giving up these rights would be tantamount to depriving oneself of both freedom and sovereignty, and would take away the basic premise of contractarian democracy (a point made by both Locke and Montesquieu). Therefore, in a Constitution that is founded upon a social contract (as the Indian Constitution purports to be), the people are entitled to reserve certain basic rights to themselves, which the government cannot take away or abridge.

But how, it may be objected, do we know what equal citizenship entails? And why, after all, ought we leave the responsibility of determining features of equal citizenship to unelected judges often drawn from a narrow pool of society? To that, the answer is that the requirements of equal citizenship – that is, the elements of the basic structure, are drawn from the Constitution itself, because “We the People” wrote them in. In other words, the theory of legislative sovereignty cannot exist in India. This is because a written Constitution, possessing the “validity of a statute emanating from the sovereign people”, and which defines the fundamental political arrangements of the State, is clearly superior to the “ordinary legislative organ.” (see the arguments of E.S. Corwin) Furthermore, not only has the Constitution defined the nation’s fundamental political arrangements, it has also brought into existence the three wings of State, and has allocated the distribution of powers between them. Therefore, the power of the legislature is clearly subordinate to that of the Constitution, and co-ordinate to the other branches of government. In this context, it may be argued, the legislature, which derives its power and its very existence from the Constitution, cannot use that power to destroy it. Secondly, none of the three State organs can use its power to destroy or abrogate the powers and functions of any of the other organs, as the Constitution clearly postulates, at the very least, the existence of the three organs with clearly defined and separate types of powers (or, in Seervai’s terms, this is what distinguishes the framing power, which is not subject to the separation of powers, from the amending power, which is; see Seervai, Vol. III, p. 3119). For example, the legislature clearly cannot pass a Constitutional amendment abolishing the judiciary. However, both these possibilities would be realized in the case of unlimited amending power. Therefore, such a construction of the Parliament’s amending power must be rejected. Thus – the argument goes – the allegation that the basic structure doctrine replaces parliamentary sovereignty with judicial supremacy simply holds no force. It is the Constitution which is sovereign and supreme, not any of the three wings of State. Undoubtedly, what the doctrine has done is to give the judiciary the last word on interpreting the Constitution. But that is all.

But now, consider a further difficulty. If the authority of the Constitution is ultimately derived from “We the People”, then surely “We the People” are allowed to change Our minds – including Our determination of what constitutes equal citizenship. Not only that, the Constitution itself provides the mechanism by which We the People can change Our minds – the supermajoritarian amendment procedure! Thus, the objection continues, if the Constitution is indeed the creation of We the People, what on earth justifies the judges in denying to the People the right to change Their minds, through the very procedure They wrote into the Constitution to do just that, even if it is to make mutable the principles They once considered immutable?

This is a difficult question, and clearly, if it cannot be answered, then the basic structure doctrine fundamentally lacks legitimacy. To answer it, we need to introduce, at this point, a new concept: that of dualist democracy, originated by Bruce Ackerman in his book, We the People.

It would be impossible to do justice to the richness and complexity of the Ackermanian theory in this short space: nonetheless – briefly – Ackerman argues that lawmaking occurs at different levels of public engagement and participation, with degrees of legitimacy accorded to each level depending upon the nature of participation. The reason, for Ackerman, why we have a representative democracy (as opposed to Athenian-style direct democracy) lies in the fact that we are both private citizens and private citizens; that is, we not only engage with the political process as citizens, through instances such as the vote, but an integral part of our lives is the private, non-political aspect. It is this private aspect that makes our lives wholesome, rich and worthwhile – indeed, there would be something distinctly incomplete about a life spent perennially engaged in politics. This, then, is what justifies representative democracy, which is nothing more than We the People delegating day-to-day political decision-making to their chosen representatives, leaving themselves free to pursue their private aims and goals, and construct their private lives.

Yet there are times when this changes. Times of great political upheaval, excitement and change, when there is great public mobilization over core issues, extensive public deliberation and debate, where what is at stake is the set of fundamental principles that structure the polity itself. In the context of American history, Ackerman identifies three such “moments”: the framing of the Constitution, the post-Civil War Reconstruction, when slavery was abolished, and the New Deal, when laissez faire capitalism was repudiated in favour of the regulatory state. For Ackerman, these periods are defined by a transformation of some of the most basic ideas that governed society, as well as the broad and deep public participation that shaped the transformation. This, then, is a higher level of lawmaking (hence, dualist democracy – dualist in that there is a difference between “ordinary lawmaking”, as undertaken by majoritarian legislatures in normal times, and “higher lawmaking”, that happens in rare moments of extensive public mobilization to debate issues of fundamental importance); and crucially, for Ackerman, the point of constitutional law (and, by extension, judicial review) is to ensure that the principles established during periods of higher lawmaking are protected from change by the majoritarian legislative process precisely because the circumstances of their framing lend them greater popular and democratic legitimacy than ordinary lawmaking.

We are now in a position to apply this argument to India. We have, of course, a parliamentary legislative procedure for ordinary times. We have a supermajoritarian amendment procedure – but, as the 98 amendments over the last 64 years demonstrate, while this is admittedly a higher form of lawmaking – it isn’t so by much (compare the 29 amendments to the American Constitution in 225-odd years). The Article 368 procedure itself is only slightly more onerous than regular lawmaking, in that it requires a two-thirds majority in each house, and some state consent in some cases.

But now consider, in comparison, the circumstances of the framing of the Constitution. Recall that it was the culmination of an independence movement that enjoyed an extraordinary broad amount of support and participation from all sections of society; the Constituent Assembly itself consisted of popular leaders of that independence movement, many of whom had served as elected representatives under the 1935 Government of India Act regime; and moreover, what was at stake was not just the transfer of power from a colonial government, but the very character of a newborn nation (see, e.g., the Constituent Assembly Debates). In short, the Ackermanian conditions for lawmaking at the highest level are here fulfilled (spoilt, in part, by the absence of a ratification process, no doubt, but for the purposes of argument, we can let that be for the moment).

And if that is the case, then we can easily understand why the most basic principles that were agreed upon – that India would be a republican democracy, governed by a written constitution, and founded upon the pillars of equality, fundamental freedoms to speak, associate and move, and secularism – these principles that now form part of the basic structure, can legitimately be preserved against both the ordinary legislative process, and the supermajoritarian amendment process that is only slightly less commonplace. What would be sufficient to change this? Another upheaval of a comparable degree to the freedom movement, one that has its animating goal changes as far-reaching, and draws upon extensive and deep public engagement. 

In this context, Indira Gandhi’s Emergency can be considered to be a failed constitutional moment (in Ackermanian terms). Not only did Mrs Gandhi proclaim a grave national emergency and an existential threat to the nation, but also, the changes she sought to bring about –  that is, complete subordination of basic rights to the whim of the parliament, the constitutionalization of bills of attainder, drastic reductions in the power of the judiciary and the strengthening of executive prerogative – much of this through the 42nd Amendment –  were an attempt at a fundamental transformation of the framers’ proposed system of governance (see Henry Hart’s take). Yet, the most far-reaching aspects of the proposed changes were struck down by the Court (first in Indira Nehru Gandhi Raj Narain, and then in Minerva Mills Union of India) on basic structure grounds; and We the People validated the Court’s stance by voting out Mrs Gandhi – both herself and her party – at the first general election after the revocation of the Emergency, one that was widely regarded as a referendum on the same; and the succeeding Janata Party undid the rest through the 44th Amendment. Had Mrs Gandhi, however, been returned victorious in the 1977 general election, surely that would have been seen as a vindication of her agenda – and a possible case for a transformative constitutional moment on par with the framing itself. And admittedly, we would now probably have had a very different Constitution, with no basic structure doctrine at all.

To sum up, then: the moment of the framing represents, in Ackermanian terms, an instance of “higher lawmaking”, one that possesses great political and democratic legitimacy because of the depth of public engagement and the transformative nature of the issues involved. It is therefore justified, then, for Courts to preserve the fundamental essentials of the framing from lower-level lawmaking procedures such as ordinary legislation and amendment, until We the People engage in higher lawmaking again. Indira Gandhi’s Emergency represents a failed constitutional moment, where We the People rejected her transformative proposals; we await the next attempt at doing so.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Free Speech and Newspaper Regulation – I: What Does “Freedom” Mean?

Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. While the word “freedom”, in this context, appears to be uncontroversial enough, it actually is the site of much philosophical and political contestation; and the Supreme Court’s newspaper regulation cases provide us with a good point of departure to examine these issues.

In the first two posts on this blog, we discussed Sakal Papers v. Union of India. Let us briefly recall the facts: the government, by legislation, introduced a price-per-page policy, in accordance with which newspapers would either have to keep their price constant and reduce their page count, or keep their page count constant, and increase the price. This was ostensibly to break the monopoly of big newspapers and ease the conditions of entry for small newspapers who could not, under present conditions, compete. The Court held that the law violated the right to freedom of expression of the newspapers affected and that the government’s defence was, if anything, a public interest defence that found no place in Article 19(2). The legislation was, consequently, struck down.

Now, on the facts of Sakal Papers, this much is undeniable: if Individual X wished to start a newspaper, prevailing conditions (particularly, an inability to compete with established newspapers due to economies of scale) would make it prohibitively expensive for her to do so. In other words, Individual X wishes to speak. She cannot do so. Why is this not a violation of Article 19(1)(a)?

There are four reasons why it may not be so. First, inability and unfreedom are two very different concepts. Human physiology dictates that I am incapable of unaided flight. Yet it would be stretching the bounds of language to claim that I am not free to fly, or that my inability to fly is a constraint upon my freedom. On the other hand, if I am locked up in a prison, we could claim with perfect propriety, that I am not free to go out. Broadly, then, our concept of freedom isn’t one of limitations upon our range of action simpliciter but – it would seem – limitations brought about by human actions of a certain sort.

Secondly, certain liberal philosophers – in particular Isaiah Berlin and John Rawls – draw a distinction between freedom (liberty) and the use (or value) of freedom. Berlin, for instance, in Four Essays on Liberty, argues:

“If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated.”

Similarly, Rawls in A Theory of Justice argues that an inability to take advantage of your legal rights and opportunities because of lack of means merely affects the worth of that liberty (to you), but not liberty itself.

Thirdly, freedom itself is a politically loaded term. My right to private property restricts your freedom to trespass, and therefore curtails your freedom of movement. My right to bodily integrity restricts your freedom to assault me at will. Therefore, it is not entirely accurate to say – as it is often said – that the institution of private property and laws against violence are about protecting freedom. What is true is that certain kinds of freedom, accorded to certain persons, are deemed – for whatever reason – to be valuable, and worth protecting; while other freedoms are deemed to be worthless. In other words, the very presence of a coercive legal system, of any sort, necessarily implies restrictions upon freedom; this, in turn, implies – as Cohen argues – that every legal system makes a political choice about the initial distribution of freedoms. It is crucial to recognise this for what it is – a conscious choice, and not a fixed or embedded part of our natural environment.

And lastly, one may accept all of the above arguments, but simply hold that Article 19(1)(a) provides freedom against State interference; and while Sakal was certainly a case of interference, the small newspapers’ 19(1)(a) rights were not affected because their liberty wasn’t being interfered with by the State.

We are now in a position to see that underlying the Court’s seemingly obvious decision are a series of unstated political choices, and it is important to examine whether these choices are justified. Let us take the issues in turn. Is the inability to enter the market equivalent to an inability to fly unaided? One school of economic thought – led by Friedrich Hayek, in particular – would hold that it is. In The Constitution of Liberty, Hayek defines freedom as the absence of coercion, that is, control by the “arbitrary will of another”. One who can act in accordance with his own decisions and plans is therefore “free”. The range of choice open to one, argues Hayek, has nothing to do with freedom, but he question is whether one “can expect to shape his course of action in accordance with his present intentions, or whether somebody else has power so to manipulate the conditions as to make him act according to that person’s will.” For Hayek, this means that the legal system must contain only abstract, general and impersonal rules, so that “in most instances an individual need never be coerced unless he has placed himself in a position where he knows he will be coerced.” In other words, the more abstract and general the rules are, the more scope you have to plan your affairs. In the economic sphere, naturally, this implies an unregulated marketplace because, while people might exploit such an environment to “alter the social landscape to which I have adapted my plans…”, yet nonetheless, “though the alternatives before me may be distressingly few and uncertain, it is not some other will that guides my action… even if the threat of starvation to me and perhaps to my family impels me to accept a distasteful job at a very low wage, I am not coerced… so long as the act is not aimed at making me do or not do specific things, so long as the intent of the act that harms me is not to make me serve another person’s ends its effect is not different from that of any natural calamity.”

Hayek thus equates the economic impact of an unregulated marketplace to a “natural calamity”. In other words, my inability to access the marketplace is indeed equivalent to my inability to fly.

Readers may – or may not – find Hayek’s arguments convincing. Intuitively, however, it seems obvious that a market and an avalanche, or a forest fire, are two very different things. The market is structured and shaped entirely by human action. The legal system, with its interlocking arrangement of rights, liabilities, powers and privileges, determines the form that it will take; and after that, the actions of individuals determine the relative positions occupied by various actors within it. How then can one argue that my access (or lack thereof) to the market is not determined by human action? Hayek’s response is to concede that it is, but to argue that an unregulated marketplace proceeds through “spontaneous evolution“, one in which the individual actions of people are not aimed at making anyone do or abstain from doing a specific thing. The entire argument, therefore, rests upon what we make of the word “aimed”, and it is extremely unclear whether it can do the philosophical work that Hayek means it to do. I put a gun to your head and order you to do X – evidently, I “aim” at making you do X – but not if I exploit a depressed labour market and the legally established and enforced labour legislation that makes no provision for minimum wage in order to offer you a subsistence-wage employment that I know you have no realistic choice but to accept. Even if true as a matter of terminology, is there really a moral difference here? It seems bizarre to claim that in our society, where from cradle to the grave, the environment that we grow up in (e.g., the legal structure), the opportunities that are open to us (e.g., the availability of public transport for those born in remote areas) and the very persons we become (e.g., the presence or absence of state-sponsored free education) are not really determined by active human agency, that the lack of opportunities open to us are not caused by human action, and that this is not a relevant moral consideration.

In any event, whatever the force of Hayekian arguments in the abstract, it is abundantly clear that Indian Constitutional philosophy does not embody Hayekian liberalism. This is because a central tenet of Hayekian philosophy is the absence of force and fraud in the establishment of economic relations within the unregulated market. Yet, as we are well aware, and as the Constituent Assembly debates (especially the ones over property, and Article 31) make abundantly clear, one of the guiding principles of our Constitution was precisely to reverse relations of power and economic dominance obtained through force and fraud during a long period of colonial rule. Subscription to a Hayekian definition of freedom, therefore, could not have been a justification for the Court’s decision in Sakal. In the next post, we shall examine the other possible arguments at play.

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Sedition as Anti-Democratic Speech: The Paradox of Liberal Neutrality?

Let us briefly sum up the conclusions of our last post on sedition:

In Kedar Nath Singh, Section 124A was challenged as being violative of Art. 19(1)(a). Naturally, the Court could not have found that the test for sedition was broader than what Article 19(2) permitted. Nonetheless, there were three ways in which the Court could have effectively hamstrung any Article 19(2) barriers, and allowed the executive a free rein in the application of the sedition law:

(a) The Court could have held that seditious speech does not come within the protection of Article 19(1)(a) at all (as it did for commercial speech in Hamdard Dawakhana and – as we shall see subsequently – it has done in a case involving the flying of the Indian flag).

(b) The Court could have created a legal fiction by holding that inciting disaffection, or feelings of enmity, or of disloyalty (as per S. 124A) is deemed to proximately disrupt public order

(c) The Court could have weakened the public order test itself, holding that feelings of disaffection could conceivably affect public order by promoting disobedience towards the government, and that that is enough, considering the wide import of the phrase “in the interests of public order” (an argument used too many times to count, on behalf of the State).

As we have seen, the Court came dangerously close to both (b) and (c), but ultimately affirmed the existing interpretation of Article 19(2), and by implication, affirmed the strong protection of free speech. The law on sedition, therefore, is clear and unambiguous. Legally, there is no doubt that instances such as those of Aseem Trivedi, the 8000 sedition cases filed against the protesters at Koodankulam, Arundhati Roy’s arrest, and countless others are blatant abuses of law. It is submitted that a legislation that serves no discernible purpose (as argued in the previous post), and is regularly used as a tool for political persecution, has no business being on the statute books. It must go.

Let us now, however, examine another issue that arose out of the Kedar Nath Singh case, but one that has received comparatively little attention. In Paragraph 36, the Court stated:

“Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”

This is framed somewhat curiously. Presumably, my inciting disaffection against the ruling UPA Government does not amount to sedition, because the UPA only consists of people “for the time being engaged in carrying on the administration.” Who – or what – then, do I have to incite disaffection against in order to qualify as seditious? Is it the government as an abstraction, as a concept? Perhaps my target must be the institution of government, as governance is practiced in India – in other words, (liberal?) democracy – that is, liberal democracy embodied by the elements of our Constitution’s basic structure.

We may now describe the alleged paradox at the heart of liberal political theory. As we have discussed in many of the previous posts, political liberalism’s central tenet is neutrality – neutrality between competing conceptions of the good, between opposite ideas of what Rawls calls “comprehensive theories” – that is theories about what is good, true and beautiful, and how one ought to live one’s life. Now, if that was true, then political liberalism itself is merely one comprehensive theory, and cannot take either epistemic or moral priority over the others. And that, in turn, would imply that if I use liberal institutions to assume political power, and then systematically dismantle those very institutions, then liberalism itself gives no argument to stop me – for that would amount to privileging one conception of the good (liberalism itself) over others (say, fascism).

States that claim to be politically liberal have struggled with this issue for years. In the United States, Justice Holmes’ “clear and present danger” test, enunciated in Schenck v. United States, was notoriously used by the Supreme Court during the McCarthy era, to suppress communist-leaning entities (see, in particular, Dennis v. United States), before being narrowed to an “incitement to imminent lawless action” test by Justice Douglas in Brandenburg v. Ohio. It is interesting to note that Dennis, in particular, involved the advocacy of a philosophy that is explicitly hostile to political liberalism, but because of American free speech philosophy’s commitment to content neutrality, the ground of the decision, ultimately, was something akin to preserving public order.

Now compare this with a decision of the European Court of Human Rights (Refah Partisi v. Turkeyand the Israeli Supreme Court (Neiman v. Election Committee), and Article 21.2 of the German Basic Law. Refah Partisi was a Turkish political party that claimed, as part of its manifesto, its commitment to the abolition of secularism, the imposition of sharia law and the creation of a theocracy in Turkey. The Turkish Constitutional Court dissolved the party. The case went up in appeal to the ECHR, which held that if a political party wishes to change the legal and constitutional structure of the State, “the change proposed must itself be compatible with fundamental democratic principles.” Sharia law, it held, was not so compatible, and it also held that political parties could be forestalled from such action by their dissolution before they came to power, as long as the need was perceived to be urgent. In Neiman, the Israeli Supreme Court, apparently influenced by John Rawls’ insistence on the need to “tolerate the intolerant”, set a higher bar of “negating the existence of the State of Israel as one of its goals” as sufficient grounds for dissolving a political party. How a political party, using political mechanisms to assume political power can simultaneously negate the very existence of the State that it seeks to govern is, however, somewhat unclear. And lastly, consider Article 21.2 of the German Basic Law, stating that parties who “seek to undermine or abolish the free democratic basic order” are unconstitutional.

Are the ECHR and Israeli decisions, and German Constitutional provision, then, philosophically justified? Laurence Tribe is clear that they are not, arguing that:

“It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions – just as it must permit evolution from communitarianism to individualism.”

Rawls and Popper, on the other hand, argue strongly that in order for a liberal society to survive, it must set limits on what it is willing to tolerate. But this leads precisely to the paradox that we outlined above – and the mere statement that liberalism will be destroyed by untrammeled toleration of the intolerant, while emotively powerful, for the reasons described above, remains philosophically unsatisfactory.

Joseph Raz does indeed take a stab at a philosophical justification. Eschewing neutrality as the defining feature of liberalism, he focuses instead on autonomy – that is, the range of worthwhile choices open to an individual to make towards the shaping of his life. For Raz, coercion (read, banning of free speech) amounts to a loss of autonomy, since it restricts a person’s range of choices; hence, it can only be justified on the grounds of a corresponding autonomy gain. A Razian would thus argue that if a thriving democracy provides maximal autonomy for all its citizens, than the autonomy loss in restricting speech for the purpose of preserving the democratic order is justified. Of course, one may have philosophical disagreements with Raz’s conception of autonomy, with his distinct flavour of autonomy-utilitarianism, but that is a debate for another day.

These issues have not yet – to my knowledge – been tested on the touchstone of the Indian Constitution. Perhaps, one day, for instance, if a party with the agenda of turning India into a ‘Hindu Rashtra‘ comes to power, they will become particularly pertinent. For now, these arguments form an important piece of the puzzle in determining whether the Indian Constitution is committed to political liberalism – and whether it should be.

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Ranjit Udeshi – II: The Enforcement of Morals

In the previous post, we noticed that in Ranjit Udeshi, the Court upheld the constitutionality of obscenity laws. Two justifications emerge from a close reading of the decision: first, the enforcement of “public morality” via Article 19(2); and secondly, the need to protect people from “moral depravity and corruption.” While there are connections between the two, conceptually, they remain separate arguments; and we shall consider them in turn.

The Hart/Devlin/Dworkin debate, conducted in the aftermath of the publication of the Wolfenden Committee Report in the United Kingdom, remains the locus classicus on the point. The Wolfenden Committee Report, on homosexuality and prostitution, famously stated that “there is an area of private morality… that is none of the law’s business.” In an essay – later a book – called The Enforcement of Morals, Lord Devlin made two arguments against this position: first, that society had the right to protect itself against practices that threatened its existence; and secondly, that society had the right to follow its own moral convictions to prevent (what it considered to be) an adverse change in its moral environment. In the case of pornography, for instance, it may be argued that the institution of marriage and the family, being a fundamental feature of our society, will be eroded by the prevalence of pornographic material (the first prong of Lord Devlin’s case); or, it may be argued that the widespread availability of pornographic material will fundamentally change the way people view sex and relationships, and that is something society has the right to forestall through criminal legislation (the second prong).

Hart attacked the first prong of the argument, and Dworkin the second. Hart argued that “society” could mean one of two things: the physical fact of a collection of people – in which case, it was absurd to suggest that “society” in this sense could be destroyed by a simple change in practices; or – as Lord Devlin held – it could mean a community with “shared ideas on politics, morals and ethics.” But if that was the definition of society, and if, admittedly, these shared ideas were constantly shifting and changing, then on what principled basis could the majority of a moment arrogate to itself the power to freeze a transient moral status quo into permanence?

Dworkin argued (here) that Lord Devlin’s idea of a “moral conviction” was inconsistent with his definition of it (“a level of disgust, rising to intolerance”). Distinguishing a moral conviction (“homosexuality is immoral”) from questions of taste (“homosexuals make me sick!“), prejudice (“homosexuals aren’t real men), rationalisations stemming from verifiably incorrect facts (“homosexuality is physically debilitating“), and parroting (“everyone knows that homosexuality is immoral!), Dworkin argued that:

“the principles of democracy we follow do not call for the enforcement of the consensus, for the belief that prejudices, personal aversions and rationalizations do not justify restricting another’s freedom itself occupies a critical and fundamental position in our popular morality. Nor would the bulk of the community then be entitled to follow its own lights, for the community does not extend that privilege to one who acts on the basis of prejudice, rationalization, or personal aversion. Indeed, the distinction between these and moral convictions, in the discriminatory sense, exists largely to mark off the former as the sort of positions one is not entitled to pursue.”

It is important to note that the upshot of Hart and Dworkin’s arguments is not to defeat any enforcement of morality, but to set an extremely high threshold upon the use of that method. The question remains, however, whether it is permissible for the so-called moral majority to apply criminal sanctions to behaviour it deems immoral. In the previous post, some arguments were adduced to demonstrate that such is not the purpose of Article 19(2) of our Constitution. We can now add three further observations: Article 19 is part of our entrenched Bill of Rights, and one – if not the most important – function of a bill of rights in a democracy is to protect minorities against the legislative power of the extant majority. Justice Jackson’s statement in West Virginia Board of Education vs Barnette deserves to be quoted in full, at this point:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

If, therefore, the right to free speech is an entrenched fundamental right (which it is), and if obscene speech comes within the ambit of the right (which, it would appear from this case, it does), then the logic of a bill of rights makes it clear that majority opinion ought not to be a valid ground of restriction.

Secondly – and this is a matter of great controversy, so I shall only advance this claim in a very tentative fashion – the nature of the rights guaranteed by Part III of our Constitution (equal protection before the law; the fundamental freedoms; life and liberty; the freedom of conscience; cultural minority rights, and so on) suggest strongly that the underlying philosophy of our bill of rights is that of political liberalism. Now, whatever else may be in dispute about the nature and meaning of liberal political theory, this much is certain (endorsed, among others, by Rawls and Dworkin): liberalism is committed to neutrality, that is, it is not for government to adjudicate upon the desirability of competing world-views and forms of life – that is a matter for individual judgment. Naturally, then, it is not for the government to promote or to hinder particular world-views through the mechanism of law.

Now, as Raz points out, it is through speech, expression and – most of all – communication that we define and place ourselves within our society; and it is through unhindered public expression and portrayals of particular forms of life that we seek validation for them; correspondingly, censorship and bans on expression amount to:

“…not only a disapproval of the particular act in question, but a disapproval of the way of life that that act or expression has come to symbolize.” (emphasis supplied)

A government ban, therefore, on an allegedly obscene publication or a pornographic work is not only censorship of that individual creation, but in our society, comes to symbolise an authoritative condemnation of the entire style or way of life that such work forms part of, is an example of, or portrays. And that is a judgment that a liberal Constitution and a liberal polity is not permitted to publicly undertake.

Lastly – and as a matter of pure textual exegesis – the framers of our Constitution appear not to have viewed “morality” as referring to “public morality”; in the Constituent Assembly Debates on 1st December, 1948, while discussing the draft article 13(2) (later 19(2)), “public order” was not yet part of the wording, and a proposed amendment sought to insert the phrase “decency or morality” (sans “public”) into 13(2). The phrase “decency or morality” was used again on 2nd December 1948 in the specific context of discussing the limitations on free speech, while “public order” was being simultaneously discussed. I suggest that from a reading of the debates, it becomes clear that “public order” and “decency and morality” were discussed separately, as separate concepts. Our Constitutional text, therefore, does not expressly make “public morality” a ground for restricting free speech; and I have suggested, in this post and the last, that our Constitutional philosophy militates against such a conclusion.

What then does the word “morality” mean, if not public morality? One possibility is that it refers to individual morality. This, indeed, is the second line of argument pursued by the Court: it is permissible to ban obscene publications because they deprave and corrupt individual morals. In the next post, we shall discuss whether and to what extent that argument can be used to justify restrictions on free speech.


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