Tag Archives: structural analysis

The National Tax Tribunals Judgment: Two Interesting Constitutional Issues

Last week, in a judgment that caused quite a stir, the Supreme Court held the National Tax Tribunal Act (and, consequently, the National Tax Tribunal, a centralised adjudicatory for the purpose of deciding and harmonising substantive questions of tax law) to be unconstitutional. I have written a detailed analysis of the judgment elsewhere; in brief, the Court held that the NTT Act transferred the jurisdiction of the High Courts to the Tax Tribunal without ensuring that the Tribunal had sufficient trappings of a Court (e.g., independence and qualifications of its judges etc.) Consequently, it fell foul of the L. Chandra Kumar judgment, and the principle of separation of powers (which the Court rather mysteriously treated as a “constitutional convention”). In a pithy concurring opinion, which is well worth a read, Nariman J. held that it was impermissible to remove the judicial power of deciding substantial questions of law from the High Court.

In this post, I want to focus on two issues thrown up by the judgment, which have been discussed before on this blog, albeit mainly from a theoretical perspective. In its judgment, the Supreme Court relied extensively on the 1975 Privy Council case of Hinds vs The QueenHinds was an appeal from the Court of Appeals of Jamaica. The Jamaican Parliament had passed the “Gun Court Act”, which set up a parallel court system to try certain firearm-related offences. One of the courts it set up was vested with the jurisdiction and powers otherwise enjoyed by the higher judiciary, but its officials possessed neither the independence, and nor the qualifications, that were also enjoyed by the higher judiciary under the Jamaican Constitution. The Privy Council found the act to be unconstitutional, since it violated the principle of the separation of powers between executive and judiciary, which – it held – was a “necessary implication” flowing from the structure of post-colonial, commonwealth “Westminster Constitutions”; it had done so, specifically, by transferring the jurisdiction of the senior judiciary to a parallel court, without guaranteeing the judicial independence of the officers of that court through the rules of tenure, appointment and retirement that applied to regular, senior judges.

In its NTT judgment, the Supreme Court quoted extensively from Hinds. In particular, consider this quotation, which comes after the Privy Council referred to Canadian, Australian and other commonwealth Constitutions (notably, not the Indian):

“All of them [Constitutions] were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive, and judicial power as it had been developed in the unwritten Constitution of the United Kingdom. As to their subject matter, the peoples for whom these new Constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new Constitutions, particularly in the case of unitary states, were evolutionary, not revolutionary. They provided for the continuity of government through successor institutions, legislative, executive and judicial, of which members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.”

Previously on this blog, I’d drawn a distinction between two types of constitutional provisions: conservative and transformative. Most Constitutions are framed at a point of a decisive break with the past, with its institutions and its values, and certain aspects of a Constitution reflect the “transformation” from one set of values and institutions to another; but the past is never a wholly foreign country, and many institutions and structures not only survive revolutionary moments, but are actually entrenched and strengthened in a Constitution, through its “conservative” provisions. A good – albeit schematic – example is that of the American Constitution: its Bill of Rights was (largely) conservative, seeking to guarantee to the American citizens the ancient and deeply-rooted common law rights (e.g., to a jury trial, against unreasonable searches and seizures etc.) enjoyed by British subjects. On the other hand, the Constitution proper was transformative, replacing British monarchy with a system of representative, republican government, exercised through three separate wings of State.

Whether a particular constitutional provision is conservative or transformative, and to what extent it is transformative can have profound implications for constitutional interpretation. For instance, it is sometimes argued that the American Nineteenth Amendment, which guaranteed women the right to vote, transformed not only their voting status, but the entire legal and political framework, based upon the inferior political and legal status of women, that underlay and justified the denial of their right to vote until that moment. Consequently, the Nineteenth Amendment is used by scholars to ground a jurisprudence of sex-equality and non-discrimination within the American Constitution.

Earlier, in the context of India, I’d tried to argue that the transformative nature of Article 15 justified Naz Foundation (Delhi HC’s) reading of “sexual orientation” into “sex”: in providing a universal guarantee of non-discrimination on a set of grounds that were traditionally the sites of social oppression, the Constitution was signaling a shift from a society in which moral membership in society was contingent upon certain unchangeable aspects of one’s personality (race, caste, sex, place of birth, religion) to one in which ever individual was guaranteed equal moral membership, regardless of those unchangeable aspects (and sexual orientation was one such).

In Madras Bar Association, the Supreme Court applies this interpretive technique, by holding that the Constitution’s structural provisions, which set up the institutions and modes of government, are conservative: they entrench the “Westminster model” that was in practice in colonial India, one of whose features was the separation of powers and concomitant independence of the judiciary, guaranteed through appointment processes and security of tenure. Notice that this interpretive technique is based, ultimately, on a historical claim: whether this “Westminster model” was actually made part of our Constitution and, if so, to what extent, needs to be deciphered not merely from the constitutional text, but from a detailed investigation into its history. Unfortunately, the Supreme Court does nothing of the sort: it glibly assumes that the Westminster Model is the model of our Constitution, and decides the case accordingly. This is problematic because the Constitution was, after all, framed in a post-colonial moment, and it requires much argument to demonstrate what set of structures and institutions the framers simply wished to see carry on unchanged into the new republic; however, the use of the analysis itself is promising, and bodes well for the future.

The other paragraph from Hinds that the Court quoted was:

“Because of all this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in a new constitution of a governmental structure which makes provisions for a Legislature, an Executive and a Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government… [and] what is implicit in the very structure of a Constitution on the Westminster Model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the Judicature, even though this is not expressly stated in the Constitution.

Previously on this blog – also in the context of Naz Foundation – we had discussed constitutional structure as one of the bases for interpretation. A structural analysis derives constitutional obligations or principles not from a textual reading of individual or aggregated provisions, but – as the American jurist Charles Black explained – from the “structure and relations… created by the text… and the inferences drawn from them.” Or, to put it in more linguistic terms, there are things that a Constitution says, and there are things that it does not say, but which, when it is taken as a whole, it necessarily implies.

In the Hinds case, much of the argument was historical: separation of powers and independence of the judiciary simply was a basic feature of Westminster governance. But, as we saw in the excerpts, the Privy Council speaks of the “structure” of the Constitution on the Westminster model, and uses the term “necessary implications”. The structural argument is quite straightforward: Constitutions are the fundamental documents creating and detailing the division of powers among the governing institutions in society. A deliberate and intentional division into three separate wings, with specific duties attached to each wing, presupposes that (in the absence of clear contrary evidence), the Constitution requires that the domains that it has marked out for each of the wings be protected from encroachment by the others. Thus, separation of powers and the independence of the judiciary simply come out as structural corollaries of the Westminster-type Constitution.

Something along these lines was the reasoning of the Privy Council in Hinds. Unfortunately, the Supreme Court walked down a very different path: it held that separation and independence were constitutional “conventions”, and accordingly, had to be upheld. This is unfortunate, because of course the meaning of convention is, precisely, that which is not legally enforceable. Thus, the Court’s decision is deeply problematic on this point.

Notwithstanding that, however, these two issues remain fascinating for the debate over constitutional interpretation. The conservative/transformative model is perhaps truest to Indian history, and can serve as an interpretive guide to a number of provisions; and, constitutional provisions flowing necessarily from the structure of the Constitution can have as much legal force as the text itself. The judgment in Madras Bar Association opens the gates for a further decision to engage with and clarify these interpretive points; whether future courts will accept the invitation is something that remains to be seen.

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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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Indian Medical Association v UoI’s structural reading of Article 15: Did the Court go too far?

Readers will recall that we have defended two readings of Article 15 that would militate against a textual-originalist approach to the Constitution: the Delhi High Court’s reading of “sexual orientation” into “sex” (here), and a hypothetical problem of inter-sectionality (here). We justified both readings on two grounds: first, a structural reading of the Article 15 in the broader context of Part III reveals that the Constitution subscribes to something we called the non-discrimination principle, i.e., “government cannot discriminate on the basis of essential aspects of any individual’s private and public identity (i.e., the series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change.” Both sexual orientation and inter-sectional positions fall within this category. And secondly, both readings are grounded in an intelligible interpretation of the text of Article 15.

In our previous posts, we focused primarily on the non-discrimination principle, but here I would like to pause briefly at the second argument. As we have observed before, it is crucial to remember that structure flows from text. It is not – as Mathew J. and Justice Holmes both observed in related contexts – a brooding omnipresence in the sky; it is firmly tethered to text, to history, to constitutional and political tradition, and to precedent. The non-discrimination principle is derived from a close reading of the specific categories listed in Articles 15, 16, 17 et al, raised to a level of abstraction that unites all of them without doing violence to any, and possesses the scope for bringing in analogous categories – that, again – it must at least be possible to support through text. A contrary position runs the grave risk of opening the floodgates to judicial legerdemain, where judges infuse into the constitutional text values that are their own, and not the Constitution’s.

Keeping this in mind, let us examine the Supreme Court’s opinion in its recent 2011 case, Indian Medical Association v. Union of India. Running into 160 pages of the judicial reports, IMA v. UoI is a long and complex case, dealing with a host of issues ranging from affirmative action, minority rights, the proper interpretation of Article 19(1)(g), the compatibility of Article 15(5) with the basic structure, and the role of the directive principles (and we shall have occasion to discuss this case at length when we discuss affirmative action). For the moment, let me focus, however, on one particular holding of the Court, that can be found in paragraphs 112 – 114. Briefly, the Court held that 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). Here’s how, in three steps:

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...”

Step One: Referring to certain comments by Ambedkar in the Constituent Assembly Debates, the Court read the word “shop” in a manner broad enough to include educational institutions (paying for and receiving a service). This brought educational institutions within the ambit of 15(2). For the purposes of argument, let us accept this as correct.

Step Two: The Court observed that entrance tests operate so as to discriminate against students who hailed from socially and educationally backward backgrounds. For the purposes of argument, let us accept this as correct as well.

Step Three: The Court then noted:

“There are two potential interpretations of the use of the word ‘only’ in clause (2) of Article 15. One could be an interpretation that suggests that the particular private establishment not discriminate on the basis of enumerated grounds and not be worried about the consequences. Another interpretation could be that the private establishment not just refrain from the particular form of overt discrimination but also ensure that the consequences of rules of access to such private establishments do not contribute to the perpetration of the unwarranted social disadvantages associated with the functioning of the social, cultural and economic order.

Et voila! What Articles 15(1) and (2) prohibited was not just invidious discrimination on enumerated grounds, but also the consequences of such discrimination (in large part, social and educational backwardness); thus, any action that contributed to maintaining such social and educational backwardness fell foul of the Article 15 prohibitions.

Now, it is submitted that the word “only” can mean many things (and indeed, we plead guilty to having played fast and loose with the phrase “any of them” earlier on this blog); but in no circumstances, twist, stretch, bend or contort the word as you may, can it bear the stress the Court has put on it here, in the context of the sentence in which it has been used. The Merriam-Webster dictionary, for instance (and I invoke a dictionary with all due caution) lists four possible uses of the word “only”, the first two of which are applicable but do not support the Court’s conclusion, and the last two are not germane to the context.

Yet be that as it may, there is a more serious objection to be made. Let us agree that the object of Article 15 is to prevent the further entrenchment of exiting inequalities by prohibiting forms of discrimination. But if that was all that was at stake, the Constitution could simply have said that. Imagine a hypothetical Article 15: “all forms of discrimination that serve to perpetuate existing inequalities and entrench social and educational backwardness are hereby prohibited.” But that isn’t what the text says, and that isn’t all there is to it, because the Constitution also specifies the manner in which that object is to be achieved by laying out specific, proscribed categories of non-discrimination: caste, religion, place of birth, sex etc. In other words, the Constitution specifies the goal through the path.

And nor is this devoid of logic. As we have discussed before, what unites the categories that we find in 15, 17, 18 et al – caste, sex, untouchability and so on – is not only are they forms of private identity that one is born with and is more or less powerless to change, but that they are an essential part of one’s public identity – that is, the labels that our society imposes to classify and categorise its subjects. It is these societal labels, by virtue of being societal labels, that have been historically responsible for the worst and most invidious form of discrimination. And we can now see why the Court’s incorporation of social and educational backwardness into Article 15 is structurally flawed – not only is it controversial whether social and educational backwardness fits within the “born into and powerless to change” category, but more importantly, it is at best a fluid and amorphous set that in no way tracks the societally-imposed clarity and rigidity of sex or caste or race.

Now we may not agree with this logic. I do not myself; Article 15 misses a trick, I think, by failing to include “class”, a fundamental driving force of discrimination over the last two centuries; and it ignores, I believe, the arbitrary role of money in blocking access to goods and services. Recent scholarship has also cast doubt over the rigidity of categories such as race and sex. But that is besides the point: the story we are telling is the story of our Constitution, and not that of our individual convictions and values – and the most plausible story that takes into account text and structure is one that the Court, it is submitted with respect, does not keep faith with.

As a final structural point, we may also note that where the Constitution wishes to provide for socially and educationally backward classes, it has done so expressly (Articles 15(4), 15(5), 16(4)). Indeed, the First Amendment inserted Article 15(4) into the Constitution precisely in order to overcome the Champakam Dorairajan decision, where the Court struck down legislation on grounds of a 15(1) violation, rejecting an argument (then based on the DPSPs) that it promoted the interests of socially and educationally backward classes. By now reading that very same category into 15(2) (and therefore, by extension, 15(1)), the Court repudiates both its own past holding, as well as the legislature’s constitutional response to it, and thus makes a break with history that it fails to justify.

We part ways, therefore, with the Court, on its interpretation of Article 15(2); nonetheless, it is gratifying to note that the Court engaged in explicitly structural analysis (saying so directly at one point), which we have defended before as the best method of constitutional exegesis. There will, of course, be disagreements over outcome; but it is far more important that the Court identifies and follows a distinct, defensible and attractive analytical method when it adjudicates cases of a constitutional nature. Hopefully, in that respect, IMA v. UoI will serve as precedent to build upon.

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