The Transformative Constitution

by Gautam Bhatia

  The absence of legal regulation, however, did not impede strong social movements within religious and other communities, focused upon two principles: individual freedom and choice within community spaces, and the right to social and political inclusion and participation. In an earlier chapter, we discussed Tanika Sarkar’s important argument that the conception and vocabulary of women’s rights first evolved in direct opposition to community control, in the debates surrounding the abolition of forced widow immolation104 and the age of consent.105 Crucially, these movements found expression in the Constitution.

  Thus, as we have seen, despite a strong cultural consensus at the end of the nineteenth century, which purported to divide society into something approximating a public/political and private/community domain, consigning women to the latter as embodiments of the ‘community’106 and depriving them of participation in the public sphere, the early twentieth century saw a strong woman suffrage movement, which culminated in that most public of rights—universal adult franchise—during the framing of the Constitution.107 Universal adult franchise under the Constitution marked a transformation not only in ascribing public citizenship to women, but in expressly doing away with the colonial-era separate voting electorates for religious communities, and marked a categorical turn away from a vision of society that treated groups as constitutive to one that understood their value to be instrumental in guaranteeing effective individual autonomy.

  In addition, we have already discussed how the horizontal non-discrimination (Article 15[2]) and temple-entry (Article 25[2][b]) provisions were the results of movements that were expressly framed in the language of civil rights for individuals against their communities, even at the cost of the ‘integrity’ of the community, understood as the continuation of strongly held beliefs and practices.108

  Indeed, it is these legacies that led Ambedkar to clarify, in the Constituent Assembly Debates, that notwithstanding the existence of minority and group rights in the Constitution, its basic unit was the individual;109 and, more specifically, to remark, during the debates on the religious freedom clauses: ‘What are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.’110

  Crucially, Ambedkar was responding to repeated attempts in the Constituent Assembly to insulate personal laws from State interference by making them a part of the right to freedom of religion. Unlike the freedom of religion, a quintessentially individual right, this move would have established group supremacy over the individual in certain crucial matters, such as marriage, divorce, inheritance, and even property transfers.111

  The Constituent Assembly’s decisive rejection of these proposals indicates clearly that the attempt to establish groups as constitutive normative units in the Constitution failed. And it failed because the Constituent Assembly agreed with Ambedkar when he specifically argued (just as Chief Justice Sinha would argue a decade and a half later) that it wasn’t merely the State, but the social system, i.e., the community, whose actions conflicted with individual rights and would accordingly have to be ‘reformed’. The specific sites of reform, of course, have to be historically understood, and, as we have seen, defined by the manner of discrimination, which primarily took the form of economic, social, and cultural exclusion.

  VI. Conclusion

  The ‘thick’ role played by religion and religious groupings in Indian public life rules out a traditional ‘liberal’ approach to the right to freedom of religion. The Constitution itself eschews this approach, its very text abandoning liberal neutrality for explicitly ‘reformist’ intentions. The key questions are what, precisely, does the Constitution aim to reform, and how ought the judiciary effectuate its reformist intentions? The Supreme Court has answered these questions by developing the three-step test, which allows it to separate ‘essential’ from ‘inessential’ religious practices, and accord protection only to the former.

  Ever since CJI Gajendragadkar’s time, this has become not only an empirical, but also a normative enquiry. The Court has simply withheld constitutional protection from practices that seem out of step with the Constitution’s progressive outlook, by deeming them ‘non-essential’. However, for a number of reasons, this approach is unsatisfactory. It also conflates two distinct questions by making them part of the same test: the distinction between the religious and the secular, which the Constitution itself draws; and the distinction between the essential and the inessential, which it doesn’t.

  In this chapter, drawing upon CJI Sinha’s dissenting opinion in Saifuddin, and locating it within the comprehensive transformative character of the Indian Constitution, I have proposed the anti-exclusion principle as a replacement for the ‘essential practices test’. This principle will obviously not apply to the first category of cases (State control over religious institutional property), which will continue to be subject to the religious/secular distinction drawn by the constitutional text. It will, however, apply to cases where constitutional protection is sought for religious customs or practices, and where there is a conflict within religious communities.

  The anti-exclusion principle stipulates that the State and the Court must respect the integrity of religious groups (and thereby treat the internal point of view of religious adherents as determinative of the form and content of religious practices) except where the practices in question lead to the exclusion of individuals from economic, social, or cultural life in a manner that impairs their dignity, or hampers their access to basic goods. The form of analysis is similar to that of anti-discrimination law. Under this approach, the Ananda Margis have every right to dance the tandava on the streets of Calcutta if they consider it essential to their faith, but the Dawoodi Bohras can be legitimately stopped from excommunicating and ostracizing their members.

  One final point remains. Does the anti-exclusion principle apply at the threshold stage of deciding whether or not to extend constitutional protection to impugned religious practices, or does it apply to judging the constitutional validity of ostensibly reformatory State laws? In my opinion, it ought to apply at both stages, depending upon the case at hand. In a case like Saifuddin, for instance, where the challenge is to a State law, then the Court can begin by asking what the law is aiming to achieve; and if the law is aiming at instantiating the anti-exclusion principle, then it is to be upheld, regardless of the status of the impugned practice.

  On the other hand, in cases like the disputes over the access to the Haji Ali and Sabarimala shrines, with which we began this chapter, there was a direct clash between two claimed rights: the constitutional right of women to worship under Article 25(1), and the right of the religious denomination to manage its own affairs under Article 26(b). In such a situation, since the foundation of the denomination’s claim is exclusion, and the treatment of women as second-class members of the community, the claim will be overridden by the stronger individual right under Article 25(1), subject, of course, to a demonstration that the religious belief is genuinely held—an issue that was controversial in the case of Sabarimala, which came to the court as a PIL. This, I would submit, is a solution that allows the Court to give effect to the Constitution’s transformative purposes without getting entangled in knotty questions of religious and theological doctrine.

  Postscript—The Sabarimala Judgement

  The Sabarimala case, with which we began and ended this chapter, was decided by a Constitution bench of the Supreme Court on 28 September 2018. In Indian Young Lawyers’ Association v. State of Kerala, by a 4-1 majority, the Supreme Court decided in favour of women’s right to enter Sabarimala.112 While the Chief Justice and Justice Nariman decided the case along traditional lines, using the essential religious practices test and also analysing whether Article 26 was applicable, the dissenting opinion of Justice Malhotra and the concurring opinion of Justice Chandrachud threw up some interesting ideas. Justice Malhotra, for
instance, rejected the essential religious practices (ERP) test altogether, on lines similar to what has been advocated in this chapter, but saw the question of religious worship as raising no significant fundamental rights issue at all.113 Fascinatingly, Justice Chandrachud agreed that the ERP, in its present form, was unsustainable. What he also did, however, was to undertake a detailed Article 17 analysis, on the lines suggested in this chapter, advocate for a broad reading of the provision, and link it up with the anti-exclusion principle.114 Justice Chandrachud’s judgement is a powerful articulation of a transformative interpretation of Articles 25 and 26, and provides a strong intellectual foundation for advancing such a reading in the times to come.

  6

  The Freedom to Work: Peoples Union for Democratic Rights and Forced Labour

  The connection between individual liberty and the shape and form of the economic structure of society may not be apparent to everyone. Nonetheless the connection between the two is real.

  B.R. Ambedkar, Memorandum and Draft Articles on the Rights of States and Minorities, 24 March 1947

  Necessitous men are not free men.

  K.T. Shah, Minute of Dissent to the Draft Report of the Sub-Committee on Fundamental Rights, 17–20 April 1947

  IN THE STORY OF the freedom struggle, the contribution of organized labour is often relegated to an insignificant footnote. Sometimes partners to—but more often, antagonists of—the dominant Indian National Congress,1 labour and labour movements are the invisible warps in the tapestry of our constitutional evolution. Their importance can be glimpsed for a moment in history in the 1931 Bill of Rights,2 which, as we have seen, was the most sustained and comprehensive such effort at a bill of rights before the drafting of the Constitution. As part of the Congress’s stated commitment to ‘end … exploitation’ and secure ‘real economic freedom’ for the people of India, the 1931 Bill of Rights contained a detailed set of provisions, such as guarantees of a living wage, limited working hours, healthy conditions of work, maternity leave, and a social safety net, on a par with classical civil and political rights. In the Constitution, however, the ‘labour provisions’ were relegated to the unenforceable Directive Principles chapter, with the observation that rights incapable of or unsuitable for enforcement could not be granted the status of fundamental rights.3

  The placement of labour rights in Part IV of the Constitution would appear to signal a constitutional intent to leave questions of economic structure outside the domain of fundamental rights. Yet, the bifurcation is not entirely obvious. Tucked away between the ‘right to freedom’ (Articles 19 to 22) and the ‘right to freedom of religion’ (Articles 25 to 28) lies a forgotten, almost vestigial, section of the Fundamental Rights chapter. Titled ‘Right against Exploitation’, it has only two provisions. Article 24 prohibits child labour in factories, mines, and other hazardous forms of employment. But before that, there is Article 23, the first part of which reads, innocuously enough:

  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.

  With begar—a system of inter-generational bonded labour unique to India—Article 23, at its heart, may, at first glance, seem only a narrow protection from debt slavery and its variants. And so it appeared to the Supreme Court, which for the first three decades after the Constitution saw no occasion to invoke or interpret it. That changed dramatically in 1982. Dealing with the exploitation of contract labour hired to work on the Asian Games Village building project in the national capital, the Supreme Court held in PUDR v. Union of India4 that the right against forced labour included the right to a minimum wage. Remarkably, the Court framed this not as a positive right or as a socio-economic guarantee that it was importing from the directive principles, but in the pure language of freedom: freedom from economic compulsions that drove workers to accept employment at wages even lower than the minimum rates.

  This chapter is a reconstruction and a defence of the transformative vision of freedom articulated by the Supreme Court in PUDR v. Union of India. I begin with an analysis of the Court’s insistence that the term ‘forced labour’ was not simply limited to physical or legal force, but applied equally to the ‘compulsion of economic circumstances’.5 I argue that, in doing so, the Court had to, and did, answer the following question: what kind of freedom did the Constitution envision (I)? In answering the question, the PUDR Court articulated a vision of freedom that included not just protection from arbitrary interference from the State, or from other human beings, but also from the concentrated power wielded through human institutions and practices, such as the market (II).

  I go on to argue that PUDR’s adoption of this vision was justified in view of both the text of Article 23, as well as our constitutional history. The Indian Constitution did not take the existing economic structure and economic arrangements as a ‘natural’, immutable state of affairs. Rather, the Constitution aimed at transforming the economic structure, but to a limited extent (III). I conclude by examining the consequences of PUDR, both in the domain of the workplace, and in other domains which are not usually thought to raise issues of constitutional freedom, such as the household (IV). While the promise of PUDR is yet to be followed through by the Courts, it remains an invitation for us to view the Fundamental Rights chapter as embodying not merely a charter of political freedom but, through Article 23, one for realizing ‘labour’s constitution of (economic) freedom’.6

  I. PUDR v. Union of India

  Surrounded by parks, leafy avenues, and a sports complex, the Asian Games Village is one of South Delhi’s more recognizable landmarks, built for the Asian Games in 1982. As with most other large-scale infrastructure projects in India, the Asian Games construction works were completed on the backs of contract and migrant labour working under exploitative conditions. The Peoples Union for Democratic Rights (PUDR) commissioned three social scientists to document the working conditions. On finding that the contractors were engaging in serious labour law violations, the PUDR took the case to the Supreme Court.7 Before the Court, the PUDR alleged that the labourers were not being paid minimum wages, that women and men were not being remunerated equally, that children were being employed in a hazardous environment, and that there was widespread exploitation of contract labour in contravention of the Contract Labour Act.

  Apart from contesting the case on merits, the Union of India (along with the Delhi Development Authority and the Delhi administration) raised two preliminary objections. The PUDR, they argued, had no standing to bring this case to court on behalf of the labourers. And even if they did, the violations, if any, were violations of ordinary labour laws (such as the Equal Remuneration Act and the Minimum Wages Act), which had been committed by private contractors. The remedies would lie under those laws. To take the State to Court under Article 32 of the Constitution, as the PUDR had done, required showing that some fundamental right of the labourers was at stake.8

  The Court swiftly disposed of the first objection. These were the early days of the PIL era, but it had already been established that where people whose rights were being violated lacked the means or the ability to seek legal redress, others could bring their case to Court on their behalf, and in ‘the public interest’.9 In PUDR v. Union of India, these conditions were clearly fulfilled.10 On the second objection, the Court noted that denying equal pay for equal work not only violated the Equal Remuneration Act, but also Article 14 of the Constitution. Likewise, employing children violated Article 24, and contravening the Contract Labour Act violated Article 21’s right to life (which, after Maneka Gandhi v. Union of India, included a life with dignity).11

  That, however, left the non-payment of minimum wages still to be accounted for. Which fundamental right provided a guarantee of a minimum wage? Counter-intuitively, the Court located it within a never-used and almost-forgotten provision of the Constitution: Article 23, which prohibited ‘traffic in human beings and bega
r and other similar forms of forced labour’. But what did minimum wages have to do with forced labour? Wasn’t forced labour limited to debt-slavery, or inter-generational bonded labour, exacted from people without any payment? That, precisely, was the argument made by the State.12

  The Court rejected this argument, noting that it sought ‘to unduly restrict the amplitude of the prohibition against forced labour enacted in Article 23’.13 Why? Because:

  It is difficult to imagine that the Constitution makers should have intended to strike only at certain forms of forced labour leaving it open to the socially or economically powerful sections of the community to exploit the poor and weaker sections by resorting to other forms of forced labour.14

  In fact:

  Could there be any logic or reason in enacting that if a person is forced to give labour or service to another without receiving any remuneration at all it should be regarded as a pernicious practice sufficient to attract the condemnation of Article 23, but if some remuneration is paid for it, then it should be outside the inhibition of that Article? If this were the true interpretation, Article 23 would be reduced to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community …15