The Transformative Constitution

by Gautam Bhatia

  At the heart of Ambedkar’s formulation was the idea that as far as language and culture go, minorities should have the option of refusing to completely assimilate with the majority group. In independent India, the controversy around cultural and educational rights has focused upon the extent to which minorities may establish and control access to their own educational institutions.52 In Zoroastrian Cooperative, the Supreme Court, arguably, was extending that logic to establish that voluntarily choosing to live together as an exclusive, geographically bounded community might be another way of preserving the Parsis’ language and culture. Such an argument is known in philosophical literature,53 and is not unfamiliar in the Indian constitutional context. The Fifth and Sixth Schedules to the Constitution, for instance, empower the State to prohibit the sale of certain tribal land to non-tribals. In Samatha v. State of Andhra Pradesh, the Supreme Court cited sociological studies to note the link between land and the preservation of culture, observing that ‘tribals had held large tracts of lands as masters and had their own rich culture with economic status and cohesiveness as compact groups’.54

  However, if that was the underlying reasoning of the Court, then surely something more was needed: in particular, evidence that a distinct way of life was central to the preservation of Parsi culture, and this way of life might be jeopardized by living in physical proximity with non-Parsis. This the Court made no attempt to establish.

  Yet, even if the Court was justified in invoking Article 29 as the legitimating provision for the exclusionary covenant, then the same constitutional provision limits the nature of the covenants that can take its shelter. There are two essential requirements that must be fulfilled under Article 29. The first refers to whom it applies to: a ‘section of citizens having a distinct language, script, or culture of its own.’ The second determines what it applies to: conservation of said language, script, or culture. Conceivably, the Parsi community, as a besieged minority, might rely upon the combination of Articles 19(1)(c) and 29 to argue that living together in groups is a crucial way in which it can preserve its distinct culture. The same argument, clearly, will not apply to exclusionary covenants where these specific circumstances are not present.

  The claim of the exclusionary covenant inZoroastrian Cooperative to not just validity (contra legitimate public policy concerns), but actual enforcement, must surely rest upon this basic idea. That is, to the extent that a community believes that the survival of its own set of cultural values depends on its members living together exclusively with each other (and not upon a politically illiberal conception of race/cultural/religious 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, this will be a complex question and the Court must look into whether the claim in question is actually justified in fact. In Zoroastrian Cooperative, as I have attempted to argue, it did not do so.

  III. IMA and Article 15(2) of the Constitution

  I will now argue that in general cases of horizontal discrimination, the Indian Constitution contains the tools to go one step beyond the solutions advanced in other jurisdictions. Article 15(2) of the Constitution, on my proposed reading, provides a horizontally applicable constitutional remedy for holding racially/religiously restrictive covenants void. Unlike the jurisdictions we have studied, therefore, the Constitution can be brought to bear directly upon the issue of horizontal discrimination, in the sense that it doesn’t just apply to private law (such as the law of contract) that might be at issue in a dispute between two non-State actors, but it applies also to private action.

  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 places of public entertainment …

  In IMA v. Union of India,55 decided by the Supreme Court in 2011, the question was whether a private, non-minority higher educational institution that admitted students only on the basis of their scores in an entrance test violated Article 15(2). The claim was based on the disparate impact of test-based admissions upon educationally underprivileged castes. But before the Court could even reach that question, it had to decide whether, on its terms, Article 15(2) was attracted in the first place. How did educational institutions fit within ‘shops, public restaurants, hotels and places of public entertainment’?

  The Court held that Article 15(2) was indeed applicable, because educational institutions were covered by the term ‘shops’. It quoted and endorsed Ambedkar’s speech in the Constituent Assembly Debates, where he had 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 … 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.56

  In other words, the Court rejected the standard uses of the word ‘shop’, i.e., 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’,57 in favour of a more abstract and ‘generic’ usage, to fit educational institutions into the definition.

  What is this ‘generic’ meaning that allows a school to count as a shop? There can be only one answer: a shop, as Ambedkar understood it in 1949, and as the Supreme Court interpreted it in 2011, 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 the concrete expression of the idea of the impersonal, abstract market of the modern liberal-capitalist economy. This is the only way that the Court could succeed in bringing educational institutions within the ambit of 15(2). But, once the Court did 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 the 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), which applies horizontally. If such covenants discriminate against persons on prohibited grounds, viz., race, religion, sex, etc., they are unconstitutional.

  This conclusion isn’t as radical as it sounds. While we have argued for a broad reading of the word ‘shop’, clearly, its scope is not limitless. The word itself, which indicates a commercial relationship as well as Ambedkar’s focus on ‘terms of service’, suggests that Article 15(2) 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). It would not apply to non-economic, associative relationships. For instance, if I wanted to sell or supply certain goods or services on the market, Article 15(2) would apply to prohibit me from discriminating on the basis of the proscribed markers; but if I wanted to gift the same goods or services to someone, it would not.58 Apart from the nature and history of the word ‘shops’, it must also be noted that a broader mandate for the intervention of Article 15(2) would also run up against Article 19(1)(c) of the Indian Constitution, which, as we have seen above, guarantees the freedom of association. Restricting the scope of 15(2) to commercial relationships is one way of harmoniously reading the two provisions.

  Furthermore, there are good philosophical reasons for this: as Tarunabh Khaitan has recently argued, and as cases from the United States and Canada demonstrate,59 the imperative of non-discrimination has to be balanced against the legiti
mate right to autonomy in private relationships.60 According to Khaitan, therefore, it is only certain kinds of private relationships that discrimination law should reach (e.g., relationships of service providers and consumers, landlords and tenants, etc.). The criteria for determining this is the extent to which such relationships have a ‘public character’, as well as the extent to which they can potentially affect people’s ability to lead a dignified life by cutting off access to important physical and social infrastructure.61 And, as we shall see below, the rationale for applying and limiting the scope of Article 15(2) to economic transactions of a certain type is grounded in some unique aspects of Indian constitutional and political history that speak to precisely this concern.

  IV. ‘Shops’, Horizontal Discrimination, and the Transformative Constitution

  Is there any warrant for the Court’s rather creative reading of Article 15(2)? I argue that there is. To start with, let us consider the most basic objection: the constitutional text. 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 abstract concept of the market? To answer that question, let us examine the history and circumstances under which this provision has come into being.

  The meaning of shops was debated in the Constituent Assembly on 29 November 1948.62 S. Nagappa, a close associate of Ambedkar, expressed a wish that the clause could have been made ‘more expansive and explanatory’, and by way of clarification asked specifically whether shops included not just places where goods were bought, but also places where services were contracted for. ‘When I go to a barber’s shop or a shaving saloon,’ he observed, ‘I do not buy anything concrete, but I purchase labour.’63 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 (not simply as the sum of its isolated terms). 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 practices involving food. In his words:

  I may also point out the revolutionary character of this article. I know that there are hundreds of Hindu shops where food is served to Hindus only. Food is a matter where Hindus have got special habits and they generally will not allow anybody to enter the place where they eat food … [but] anybody can now claim entry to any place where food is sold. I therefore think that we must prepare the ground to give effect to this change which is of a far-reaching character.64

  Ambedkar then answered Sardar Nagappa in the quotation that the Supreme Court in IMA v. UoI extracted—about ‘shop’ being used in its ‘generic’ sense. Specifically, Ambedkar was asked whether shop included a doctor’s and a lawyer’s chambers. His answer: ‘It will include anybody who offers his services … 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.’65

  The debate made it clear, therefore, that the word shop was not understood in its narrow, spatial sense, but in a broader sense of a place defined by an arm’s-length transaction on the basis of previously agreed terms and conditions. This is buttressed by the fate of a proposed amendment by K.T. Shah, who wanted to replace the two sub-clauses of the horizontal non-discrimination provision with a single omnibus clause, focused on public spaces. His amendment sought to protect ‘places dedicated to the use of the general public’, such as theatres and cinemas, parks, gardens, museums, etc.66 Shah’s amendment was rejected, making it clear the article was not based upon the concept of guaranteeing access to space, but of ensuring that nobody was excluded from participation in the basic economic life of the community. In terms of outcomes, this would often overlap with a spatial idea of the public, but it was, obviously, very different in its thrust and intent.

  And lastly, when, on 22 November 1949, during the third and final reading of the Draft Constitution, Ajit Prasad Jain discussed the provision, he did so by grounding it in a long history of horizontal, societal, and economic discrimination against women, scheduled castes, untouchables, and other groups, which had blighted Indian society.67 We can thus see that both the supporters and the opponents of what eventually became Article 15(2) were united in their understanding that the purpose of the provision—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.

  This argument is buttressed by the fact that, when the non-discrimination clause was first drafted in the Fundamental Rights Sub-Committee, ‘schools’ were expressly included within its ambit.68 This is scarcely surprising, since caste-based segregation in schools had been a staple feature of colonial life (Ambedkar himself began his education sitting outside in the verandah of the classroom). The word ‘schools’ was taken out on the recommendation of the Sub-Committee on Minorities,69 not because it was proposed that schools be exempted from the non-discrimination clause, but because, as the framers specifically recognized, the Constitution authorized denominational schools that by definition existed to serve specific religious communities.70 Naturally, such schools would have to set (discriminatory) criteria for admission; however, as we have seen, the forms of discrimination that Article 15(2) sought to tackle were much broader and more far-ranging. Put in this perspective, the Fundamental Rights Sub-Committee’s initial decision to include schools within the ambit of (what became) Article 15(2) testifies to its transformative character, a character that is not diluted by its subsequent removal for certain very special reasons.

  It is with this background that we can now understand that IMA v. UoI’s interpretation, far from being untenable, infused transformative content into Article 15(2).

  To understand precisely the manner in which Article 15(2) was meant to be transformative, as discussed in the Prologue, recall that, traditionally, civil liberties have been exercisable vertically, i.e., individuals against the State. The vertical nature of bills of rights—which arose from the American and French revolutions—goes hand-in-hand with a separation between State and market, and between the public and private spheres.71 Critical theorists argue that the State/market and public/private distinction encoded into classical bills of rights reflects the fact that these revolutions were driven by a rising bourgeoisie class, and targeted at absolutist and centralized State power.72 Thus, by addressing bills of rights exclusively to state action, and by creating protected zones under the rubric of the ‘private sphere’, those liberal constitutions ensured that all action within the protected private sphere was deemed off-limits, subject to no scrutiny, and beyond the field of politics. Naturally, this meant that inequalities of power, structural violence, and relationships of domination and subordination within the private sphere (which included the market) went untouched and unregulated.

  As a related point, 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: the idea that sovereignty was single, indivisible, and ultimate, and resided at one place in the polity.73 Initially, sovereignty was believed to be 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 American revolution culminated in a 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, because it was there where the locus of sovereign power, albeit delegated, resided.74

  As we saw in the Prologue, however, sovereignty in India was always understood very differently: it was inherently decentralized and had its locus at multiple points, especially in
the economic sphere.75 In addition, as the works of the subaltern historians has shown, 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 centres of power-and-sovereignty that had characterized the old Indian polity.76

  This understanding of authority as decentralized, horizontal, and consisting of multiple foci was mirrored by the evolution of the concept of rights, which were never understood exclusively as bulwarks against State power. For instance, as the historian Tanika Sarkar argues, while examining the three great social reform movements of the nineteenth century that were aimed at women (i.e., the age of consent for sexual intercourse, widow remarriage, and outlawing the custom of sati), the vocabulary of a woman as a rights-bearing individual was first framed horizontally, in opposition to the ‘community as a culture-bearing entity’77 (and not in opposition to the State). Similarly, even as the nationalist movement was articulating a set of vertical civil and political rights against the colonial authority through a series of constitutional charters,78 Ambedkar himself invoked the vocabulary of rights against the horizontal structures of the caste system, which excluded Dalits from the social and religious life of the community—an exclusion that, not coincidentally in the context of our reading of Article 15(2), was founded upon spatial and social segregation. In particular, and in response to the segregated social and economic order, Ambedkar led movements to guarantee the right to take water from public watering places (horizontal social exclusion), while other leaders of the ‘Depressed Classes’, with the support of Gandhi, led movements to enter Hindu temples, on parity with other Hindus (horizontal religious exclusion).79 As we shall see below, both these rights would ultimately be incorporated into the Constitution.