The Transformative Constitution

by Gautam Bhatia

  … while the best and the most meritorious of those seeking appointment under the State should be selected, it is also equally fair and equitable that a just proportion of the posts should be given to those who, because of a peculiar handicap, may not stand a chance against those not so handicapped. It would be an extension of the principle of Article 16(4) to those that do not fall under Article 16(4). Defence Personnel who on account of their service with the Army, the Navy, and the Air Force over the years have lost opportunities for entering Government service and have also lost contact with ordinary civilian life may find it extremely difficult, on demobilization, to compete with civilians for civilian jobs despite the qualities of discipline, sacrifice, sense of public duty, initiative, loyalty, and leadership which they would have undoubtedly acquired as members of the Defence Forces.113

  What N.M. Thomas did, therefore, was to turn the reasoning of the dissenting opinion in Sukhnandan Thakur into the judgement of the Court in Jagdish Rai, and open up Article 16(1) to a range of group-oriented affirmative action measures. Importantly, Jagdish Rai’s formulation of ‘underserved want’ was substantially wider than N.M. Thomas’s focus on socially imposed disabilities. Depending on how the word ‘undeserved’ is interpreted, it could expand the reach of Article 16(1) to encompass situations covered by Justice Mathew’s broadest formulation, requiring the State to compensate individuals for bad luck or a lack of fortune or talent.

  The basic point remains, however: ‘classification’ under Article 16(1), after N.M. Thomas, is not limited to ‘uniform tests’ aimed at selecting the most ‘meritorious’ or the most ‘efficient’, but includes measures that take into account the personal characteristics (or group membership) of people, and how those personal characteristics interact with the social environment in ways that could facilitate or limit an individual’s chances in an open competition. As Jagdish Rai shows, the groups in question need not be limited to the traditional subjects of Article 16(4), viz., Scheduled Castes, Scheduled Tribes, and Other Backward Classes, but can include any set of persons who share a characteristic that has, in the past or the present, been a site of, or reason for, disadvantage.

  Notably, a final corollary of this is that Article 16(1) permits further sub-classification which is sensitive to disadvantage within groups, and the Supreme Court has been wrong in rejecting the State’s power to do so.114

  B. Power and Duty

  Secondly, the immediate impact of holding that Article 16(4) is a facet of Article 16(1) is that, contrary to the Supreme Court’s holding in Rajendran, the principles underlying Article 16(4) are now enforceable rights. Group-oriented substantive equality is no longer only a matter of the State exercising its discretion in deciding whether and how to compensate for structural inequalities. Indeed, if the principles underlying Article 16(4) are now ‘facets’ of Article 16(1), then it must follow that—as Galanter realized immediately after the judgement in N.M. Thomas was delivered115—an individual who feels that she has been substantively disadvantaged by reason of her group membership has a right to approach the Court and demand that this inequality be mitigated.

  Of course, this radically transforms the relationship between individual and the State, when it comes to questions of structural inequalities and substantive barriers to access. After N.M. Thomas, the State does not merely have the power to remedy these inequalities, but has a duty to identify and remedy them—a duty for which it is answerable in a court.116

  This duty is not limited to the groups that are the subjects of reservation policies, i.e., the Scheduled Castes, the Scheduled Tribes, and the Other Backward Classes, following the 1992 Supreme Court judgement in Indra Sawhney. While the N.M. Thomas judgement was delivered in the context of reservations, and was an interpretation of Article 16(4), its formulation of equality as requiring the overcoming of structural and institutional barriers to access is constrained neither by the subject group of Article 16(4) (backward classes) nor by its chosen mode of redressal (reservation in appointments).117

  After N.M. Thomas, any individual or group of individuals is entitled to bring a claim under Article 16(1), based only on demonstrable structural or institutional discrimination. N.M. Thomas, therefore, makes the Equality Code dynamic: instead of tying substantive equality to a fixed category of backward classes, it envisages a constantly evolving situation, where groups that are the sites of social and institutional disadvantages can change over time, and even new groups can be added as times change.118

  Although the Supreme Court had inconsistently rejected the ‘power + duty’ formulation of Article 16(1) even after N.M. Thomas,119 there are recent signs that it has begun to understand the issue. For instance, in its famous National Legal Services Authority or NALSA judgement, it directed reservation for members of the transgender community in State employment.120 After cataloguing a long history of institutional discrimination and violence ‘in all spheres of society’121 (including denial of recognition, access to healthcare and employment, and access to public spaces), in its final directions to the State, the Supreme Court specifically noted that the transgender community would be entitled to reservations as a ‘socially and economically backward class’ under Article 16(4) of the Constitution.122

  Although NALSA has faced problems in implementation, it nonetheless remains an important judgement that advanced the logic of N.M. Thomas in the two directions discussed above. First, NALSA expanded the reach of Article 16 to a group that did not fall within the traditional category of backward classes, by using the underlying transformative logic of the Constitution’s Equality Code (i.e., that of overcoming structural barriers that had been thrown up around entire groups of people because of their group membership). Second, once it had been established that the transgender community did have the markers of a backward class, it followed that it also had a right to an equality-achieving remedy from the government. No longer was Article 16(4) simply an enabling provision under which the government could choose to act, or refrain from acting, in aid of backward classes. The logical conclusion of N.M. Thomas reading Article 16(4) into 16(1) was precisely that groups facing structural inequalities now had an enforceable right against the State, grounded in the idea of equality.

  C. Disparate Impact

  This leads us to the next important implication. As the Supreme Court has often held, Articles 14, 15, and 16 together constitute the Equality Code (along with Articles 17 and 18), and embody one coherent philosophy of equality under the Constitution. We have seen that courts have used this dictum to read Article 14’s classification test into Article 16(1) and, occasionally, Article 15. However, if Articles 14, 15, and 16 constitute the Equality Code, then surely the relationship is two-way. Just as the principles under Article 14 can illuminate and inform the interpretations of Articles 15 and 16, the concrete content of Article 16(4)—now, after N.M. Thomas, a facet of Article 16(1)—ought to be read back into the abstract principles of Articles 14 and 15(1).

  As Justice Mathew pointed out in N.M. Thomas, one important aspect of Article 16(4) is that its test for inequality is an effects-oriented test.123 That is, according to Article 16(4), inadequate representation in State employment is an indicator that this state of affairs is the result of social or institutional inequality, which requires to be remedied via the doctrine of equality of opportunity.124 Justice Mathew’s own example, borrowed from Bernard Williams, supports this view. The fact that the descendants of erstwhile slaves are overwhelmingly unsuccessful in qualifying as soldiers under a seemingly neutral test of strength is evidence to suggest that the test is not quite neutral. And a little digging reveals that the ‘neutral’ test is so constructed that the past socially imposed disabilities that the erstwhile slaves suffered from will put them at an extreme disadvantage in the ‘open competition’ of the present.

  In equality jurisprudence, the approach of focusing on the ‘disproportionately exclusionary impact’125 of policies rather than their formal character or their motive is known a
s ‘disparate impact’. It is based on the premise (as we discussed in Chapter 1) that inequality and discrimination result not from individual hostile acts, but from structures and institutions. As a corollary, discrimination does not necessarily occur through a set of identifiable and discrete acts, but can be seen through results—for example, when a particular group’s participation in the workforce is found to be far smaller than its share in the population.126

  Disparate impact of this kind raises a presumption of inequality, which must then be rebutted. For example, in a Canadian case, it was necessary to pass an aerobics test in order to get a job as a firefighter. It was found that, statistically, and for physiological reasons, far fewer women passed this test than men. Even though the test made no reference to gender, and was perfectly ‘neutral’ in that regard, the doctrine of disparate impact raised a presumption that the test was gender-discriminatory. The State was called upon to demonstrate that the physical test was necessary for fulfilling the duties of a firefighter. It failed to do so, and the test was struck down.127

  As we discussed in previous chapters, the Indian Supreme Court has never explicitly accepted disparate impact as being a part of its equality and discrimination law toolkit. However, a necessary implication of N.M. Thomas is the incorporation of disparate impact analysis into equality law. This is because Article 16(4) is based entirely on that principle. The lack of representation in government services raises the initial presumption of inequality, which is then substantiated by investigations into backwardness. Until N.M. Thomas, Article 16(4) remained an exception to the Equality Code, along with whatever principles that underlay it. However, once it is accepted that 16(4) is a facet of 16(1), it becomes clear that disparate impact is contained not only within the meaning of equality of opportunity under Article 16(1), but must also be ‘read back’ into Articles 14 and 15(1), and into the broader jurisprudence of equality and non-discrimination.

  Part Two

  Fraternity

  Article 15

  (2) 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—

  (a) access to shops, public restaurants, hotels, and places of public entertainment

  Article 17

  ‘Untouchability’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.

  Article 23

  (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

  (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste, or class or any of them.

  Article 25

  (1) Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise, and propagate religion.

  (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

  (a) regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice;

  (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

  Article 26

  Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

  …

  (b) to manage its own affairs in matters of religion.

  4

  Civil Rights: Indian Medical Association and Horizontal Discrimination

  The issue is not entry [into temples] but equality.

  B.R. Ambedkar (quoted in Anupama Rao, The Caste Question)

  The teacher had allotted us a place in a corner near the door from where we could not move until school was over for the day. The blackboard would be in another corner.

  Baby Kamble, The Prisons We Broke

  IN EARLY 2014, THE Indian government mooted an ‘Equal Opportunities Commission’ (EOC).1 This move was based upon the Sachar Committee Report of 2006, which had found that the Indian Muslim community was significantly disadvantaged on a host of parameters, including access to social and physical infrastructure, standards of living, and literacy. According to the report, the task of the EOC, like its counterparts in the US and European countries,2 would be to check discrimination against minority communities in employment, housing, accommodation, and so on.3

  The EOC was necessitated by the existence of horizontal discrimination, i.e., discrimination suffered by private entities at the hands of other private entities (individuals or corporations) on the basis of constitutionally proscribed markers, viz., sex, race, caste, religion, place of birth, etc. Horizontal discrimination can take a variety of forms: restrictive covenants, denial of access to public spaces, exclusion from economic transactions, and so on. These disparate ways of discrimination all involve, in some manner, a clash between the associative rights of private individuals (including their right not to associate with others, and to exclude others from associating with them) on the one hand, and the rights of individuals and groups against non-discrimination and to full participation in the economic and social life of the community on the other.4

  In this chapter, I examine horizontal discrimination in the form of one particularly invidious avatar: housing discrimination on the basis of religion. This is because housing discrimination has become a pervasive feature of the Indian social landscape in recent times.5 In some states it has even received legal sanctity through laws that allow State agencies to prohibit sale of property along inter-religious lines.6 More importantly, however, the Supreme Court’s most detailed and, as I shall argue, incorrect engagement with horizontal discrimination arose in the context of a housing case, and provides us with a point of departure from which to analyse the constitutional questions at issue and how the Court dealt with them.

  At first blush, housing discrimination appears to be a straightforward violation of Articles 14 and 15(1) of the Constitution. Of course, matters are complicated because most housing societies7 are private, while the equality and non-discrimination guarantees are addressed to the State. In the first part of this chapter, I examine various possible solutions to this problem by looking to the decisions of other constitutional courts (I). I then examine the greatest obstacle that lies in the way of similar legal developments in India—the 2005 Supreme Court decision in Zoroastrian Cooperative—and argue that its reach must be narrowly limited to its specific factual matrix (II). I go on to analyse the Supreme Court’s landmark 2011 decision in Indian Medical Association (IMA) v. Union of India, and argue that it lays the groundwork for a constitutional, horizontally applicable civil rights jurisprudence grounded in an expansive reading of Article 15(2) of the Constitution which goes beyond the solutions advanced in other jurisdictions (III). I end by discussing how this interpretation, an apparent departure from the principles of classic political and constitutional liberalism, is philosophically and historically justified, given the transformative character of the Constitution (IV).

  I. The Problem of Restrictive Covenants

  Housing discrimination is often carried out through exclusionary covenants, which restrict the sale, transfer, or occupation of property on the bases of race, caste, religion, ethnicity, sex, nationality, or other such grounds that are normally considered discriminatory.8 Exclusionary covenants present a troublesome legal problem because they fall at the intersection of the private right of contract and the evil of discrimination. Often, the groups at the receiving end of the exclusionary covenant have, until recently, been formally treated a
s second-class citizens in law and/or fact, and only lately been legally emancipated.9 Exclusionary covenants then become a substitute for official state-perpetrated discrimination and other direct forms of suppression that are no longer permitted by law. They contribute to perpetuating second-class status on a now informal plane, ensuring that the social disadvantages and disabilities (that we discussed in the last chapter) continue to endure.

  Comparative constitutional jurisprudence (drawn from jurisdictions that broadly respect the freedom of contract while also enshrining a constitutional guarantee of non-discrimination) reveals that courts have been acutely aware of this problem and have devised creative solutions. Arranged along a spectrum of horizontality between one end where the sanctity of contract is given great deference and the other where the constitutional value of non-discrimination is accorded priority, three distinct solutions emerge, viz., non-enforcement, invalidation on the contractual grounds of vagueness and public policy, and invalidation on the grounds of public policy as drawn from the constitutional guarantee of non-discrimination. These solutions track each jurisdiction’s differential understanding of the relationship between private actors, private law, and the Constitution, which in turn is often drawn from specific textual provisions.10

  A. Non-Enforcement

  Shelley v. Kraemer11 is a 1948 US Supreme Court decision concerning a covenant that prohibited certain property from being ‘occupied by any person not of the Caucasian race’, and signalled an express intent to exclude ‘people of the Negro or Mongolian race’. Notwithstanding this, a parcel of land was sold to the Shelleys, the petitioners, who were black. The respondents (parties to the original restrictive covenant) invoked the restrictive covenant to argue that this contract was void. The petitioners argued, on the other hand, that the covenant violated their Fourteenth Amendment constitutional right to the equal protection of laws.