The Transformative Constitution

by Gautam Bhatia

  94. Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India 162 (New Delhi: Oxford University Press 1998).

  95. See, e.g., Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441; I.R. Coelho v. Union of India, (2007) 2 SCC 1. In the famous ‘right to privacy judgement’ (Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the concurring opinion of Justice S.K. Kaul had a full section titled ‘The Constitution of India—A Living Document.’

  96. See, e.g., the proliferating use of Article 142 of the Constitution.

  97. As Justice Antonin Scalia of the United States Supreme Court pointed out in his critique of the Supreme Court’s application of the ‘evolving standards of decency’ test to interpret the Eighth Amendment’s prohibition of ‘cruel and unusual punishment’, if you peg the scope of rights to such a subjective standard, there is no warrant for believing that the rights will always be ratcheted up in an expansive direction, rather than ratcheted down to become more restrictive. The same considerations apply to judicial interpretation. In recent times, the ‘ratcheting down of rights’ purely on the touchstone of judicial ideology has been most clearly visible in the judgements of Supreme Court Justice Dipak Misra, in the domain of freedom of speech: the Supreme Court has taken upon itself broad censorial powers that cannot be justified under any respectable interpretation of the constitutional text. See, e.g., Gautam Bhatia, ‘The Illegality of the National Anthem Order’, Indian Constitutional Law and Philosophy, 30 November 2016, available at https://indconlawphil.wordpress.com/2016/11/30/the-illegality-of-the-supreme-courts-national-anthem-order/, visited on 27 May 2018. The ‘living document’, therefore, is a sword that cuts both ways, and cuts deep.

  98. See, e.g., Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, where Justice D.Y. Chandrachud advanced a lucid account of how the interpretation of the Constitution’s Ordinance-making powers was dependant on understanding how the constitutional structure in India evolved historically.

  99. Named after the Supreme Court judgement in A.K. Gopalan, this phrase is used to (derisively) refer to the initial period of the Supreme Court’s existence, when it was perceived to be excessively formalist and conservative. And derision was broadly the reaction of the nine-judge bench of the Supreme Court during oral arguments in the Puttaswamy case (2017), when some of the counsel arguing for the Union of India attempted to invoke the original intention of the framers to make the point that the Indian Constitution did not guarantee any right to privacy.

  100. This debate is not unique to India. See, e.g., Grewal and Purdy, ‘The Original Theory of Constitutionalism’, supra, 668: ‘Both originalism and living constitutionalism ultimately fail to reconcile constitutional authority with popular sovereignty.’

  101. There is, of course, no bright line standard to determine this, and is a matter of argument.

  102. The concept itself is virtually incoherent when applied to the polyvocal Constituent Assembly.

  103. See, e.g., Ronald Dworkin’s defence of the US Supreme Court judgement in Brown v. Board of Education, that interpreted the US Constitution’s Fourteenth Amendment to outlaw segregation. Ronald Dworkin, ‘Constitutional Cases’ in Taking Rights Seriously 131–150 (Cambridge: Harvard University Press 1977). Unlike the US Constitution, the Fundamental Rights chapter of the Indian Constitution is not merely a statement of principles. For example, to name just three, Articles 16(4) (reservations), 17 (prohibition of ‘untouchability’), and 24 (prohibition of child labour in hazardous industries) represent very concrete commitments that were responding to tangible legacies of injustice. However, as I shall argue through the course of this book, these specific commitments are concrete manifestations of the principles already contained in the Constitution, and can serve as interpretive aids to provide those principles with flesh.

  104. This approach comes closest to Jack Balkin’s ‘framework originalism’. See Jack M. Balkin, Living Originalism (Cambridge: Belknap Press 2014).

  105. K.G. Kannabiran, The Wages of Impunity, supra, 18.

  106. Michael R. Anderson and Sumit Guha, ‘Introduction’ in Changing Conceptions of Rights and Justice in South Asia 1, 4 (Michael Anderson and Sumit Guha eds., New Delhi: OUP 1998).

  107. See, for example, the debates surrounding the Indian Civil Liberties Union (ICLU), which was established by Jawaharlal Nehru in the 1930s. Nilanjan Dutta, ‘From Subject to Citizen: Towards a History of the Civil Rights Movement’ in Changing Conceptions of Rights and Justice in South Asia, supra, 275, 278–9. See, also, the debates surrounding the famous Karachi Fundamental Rights Resolution. Kama MacLean, ‘The Fundamental Rights Resolution: Nationalism, Internationalism, and Cosmopolitanism in an Interwar Moment’, (2017) 37(2) Comparative Studies of South Asia, Africa and the Middle-East 213.

  108. Tanika Sarkar, ‘Something Like Rights? Faith, Law and Widow Immolation Debates in Colonial Bengal’, (2012) 49(3) The Indian Economic and Social History Review 295.

  109. Eleanor Zelliott, Ambedkar’s World 56, supra.

  110. For example, the first articulations of civil rights in the colonial era arose out of the regime’s deportation of editors and press censorship. See, e.g., C.A. Bayly, ‘Rammohan Roy and the Advent of Constitutional Liberalism in India, 1800-30’, (2007) 4(1) Modern Intellectual History 25.

  111. On this point, see the extended discussion in Kaviraj, ‘Ideas of Freedom in Modern India’, supra, pp. 97–143. As Mark Juergensmeyer puts the point while discussing the discourse of Punjab’s Ad-Dharm movement, ‘the major factors that moulded the movement as a whole were largely Indian: the example of Arya Samaj, the qaum models of Sikhs and Indian Muslims, the traditional religious identity of the lower castes, and the communal egalitarianism of the panthik movements’. Mark Juergensmeyer, Religious Rebels in the Punjab: The Ad Dharm Challenge to Caste (New Delhi: Navayana 2009). In his critique of Edward Said, Sumit Sarkar warns us against the trap of essentializations when writing Indian history. See Sumit Sarkar, ‘Orientalism Revisited: Saidian Frameworks in the Writing of Modern Indian History’, (1994) 16(1–2) Oxford Literary Review 205.

  112. Portelli, ‘The Oral Shape of the Law’, supra, 247.

  113. For a critical discussion of the uses and misuses of history in ‘contextual interpretation’, see Pierre de Vos, ‘A Bridge Too Far? History as Context in the Interpretation of the South African Constitution’ (2001) 17 South African Journal on Human Rights 1.

  114. Aditya Nigam, ‘A Text Without Author: Locating the Constituent Assembly as Event’, (2004) 39(21) Economic and Political Weekly 2107, 2108.

  115. Johann van der Waal, The Horizontal Effect Revolution and the Question of Sovereignty (Berlin: Walter de Gruyter 2014).

  116. De Vos, ‘A Bridge Too Far?’, supra, 1.

  117. For readings of the Constitution that doubt its transformative character and attribute to it a more conservative hue, see the essays in The Indian Constituent Assembly: Deliberations on Democracy, supra.

  118. Robert Cover, ‘The Supreme Court’, supra, 4.

  119. Ibid., 39.

  120. Edward Said, Culture and Imperialism 78–79 (New York: Knopf 1994).

  121. Walter Benjamin, ‘On the Concept of History’, available at http://members.efn.org/~dredmond/ThesesonHistory.html.

  122. For a similar account, see Robert Cover’s idea of ‘redemptive constitutionalism’. Robert Cover, ‘The Supreme Court’, supra, 34.

  1: Sex Discrimination: Anuj Garg and the Anti-Stereotyping Principle

  1. Section 30, Punjab Excise Act, 1914.

  2. Anuj Garg v. Hotel Association of India (2008) 3 SCC 1.

  3. Ibid., ¶55.

  4. For the purposes of this chapter, the words ‘sex’ and ‘gender’ are used interchangeably. Readers interested in following up on the debate can refer to Joan Scott, ‘Gender: A Useful Category of Historical Analysis’ (1986) 91(5) The American Historical Review 1053–75; Mari Mikkola, ‘Feminist Perspectives on Sex and Gender’, Stanford Enc
yclopedia of Philosophy, available at https://plato.stanford.edu/entries/feminism-gender/, visited on 23 July 2017. For a judicial elaboration drawing the distinction between (biological) sex and (socially constructed) gender, see G v. B, MAHGB-000291014 (High Court of Botswana).

  5. It is important to acknowledge that the judgements analysed in this chapter, the historical trajectory that is charted, and the theory of equality that I advance do not take into account the intersection of sex and caste and, therefore, the experience of discrimination that is faced by Dalit women. It also operates under a gender-binary framework which is insensitive to the discrimination faced by gender fluidity. These are shortcomings that are shaped partly by the historical record, and partly by the constraints of my own subject position, and my ability (or lack thereof) to transcend it. I attempt to address some of these issues elsewhere in this book. Thanks to Shreya Atrey for bringing this point to my attention.

  6. Catherine Albertyn, ‘Substantive Equality and Transformation in South Africa’ (2007) 23 South African Journal on Human Rights 253, 255.

  7. See, e.g., Jimena Suarez Ibarrola and Gautam Bhatia, ‘Gender Discrimination’ in The Max Planck Encyclopedia of Comparative Constitutional Law, available at http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e127, visited on 23 July 2017. See also, observations by Justice Patanjali Shastri, in Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123: ‘[Discrimination means] to make an adverse distinction with regard to; to distinguish unfavourably from others.’ For a more detailed consideration of this, see, infra, Chapter 3.

  8. On the issue of separate schools for boys and girls, see Anindita Pattanayak, ‘Guest Post: Same-Sex Schools and Gender Discrimination under the Constitution—I’, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2015/05/18/guest-post-same-sex-schools-and-gender-discrimination-under-the-constitution-i/, visited on 23 June 2017.

  9. For a discussion of this issue in a comparative context, see Andrews v. Law Society of British Columbia (1989) 1 SCR 143 (dissenting opinion of Justice McIntyre) (Supreme Court of Canada); see also Mmusi v. Presiding Officer (2012)] MAHLB-000836–10 (High Court of Botswana), holding that the act of differentiation must impair human dignity in order to qualify as constitutionally prohibited discrimination. Under the South African Constitution, Section 8(3), discrimination must be ‘unfair’, and if it is on the basis of the grounds listed under the Constitution, there is a preliminary presumption that it is unfair. See, e.g., Gumede v. The President (2009) (3) BCLR 243 (Constitutional Court of South Africa).

  10. In addition, there might, on occasion, be disagreement over whether a particular distribution of benefits and burdens is unequal. See, for example, the collection of judgements known as the ‘Air Hostess Cases’, where (female) air hostesses were required to retire at a younger age than (male) air flight pursers, but were granted accelerated avenues of promotion as compensation. Air India v. Nargesh Mirza, AIR 1981 SC 1829; Air India Cabin Crew Association v. Yeshaswinee Merchant (2003) 6 SCC 277.

  11. For an extended discussion, see Tarunabh Khaitan, A Theory of Discrimination Law (Oxford: Oxford University Press 2015). For a few judicial pronouncements on this vexed issue, see Brooks v. Canada Safeway Ltd. (1989) 1 S.C.R. 1219 (Supreme Court of Canada); Geduldig v. Aiello, 417 U.S. 484 (1974) (Supreme Court of the United States); Wimberly v. Labour and Industrial Relations Commission, 479 U.S. 511 (1987) (Supreme Court of the United States), and its critique in Martha Minnow, ‘Justice Engendered’ (1987) 101 Harvard Law Review 1, 25. For a broader discussion, see British Columbia Public Service Employees Relations Commission v. BCGSEU (1999) 3 S.C.R. 3.

  12. CN v. Canada, 1987 1 SCR 1114, 1134–1135 (Supreme Court of Canada).

  13. Shreya Atrey, ‘Guest Post: Article 15(1) Through the Lens of Intersectionality’, Indian Constitutional Law and Philosophy, https://indconlawphil.wordpress.com/2015/06/10/904/, visited on 23 July 2017.

  14. See, e.g., Minnow, ‘Justice Engendered’, supra.

  15. See, e.g., Joan Williams, ‘Deconstructing Gender’ (1989) 87 Michigan Law Review 797. To understand that physical differences are not intrinsically salient, consider an alternative, hypothetical workplace where, for some reason, all doorways are exceedingly low; in this workplace, physical differences in height would acquire the salience that pregnancy has in the real world.

  16. Article 15(3), Constitution of India.

  17. But see State of Kerala v. N.M. Thomas, AIR 1976 SC 940, infra, Chapter 3.

  18. Under the Constitution, Articles 14 to 18 are collectively grouped under the heading ‘Rights to Equality’. See also Indra Sawhney v. Union of India, AIR 1993 SC 477.

  19. Other constitutions are more categorical about this. See, e.g., Section 15(2), Canadian Charter of Rights and Freedoms; Section 9(2), Constitution of South Africa. For an analysis, see Ratna Kapur, ‘Gender Equality’ in The Oxford Handbook of the Indian Constitution (Sujit Choudhry et al. eds., New Delhi: OUP 2016), 742, 746.

  20. See, e.g., the split verdict of the South African Constitutional Court in President of the Republic of South Africa v. Hugo, 1997 (6) BCLR 708, on the question of whether a presidential pardon to all imprisoned single mothers with children under the age of twelve violated the guarantee against sex discrimination, given that it was based upon both the reality as well as the stereotypes about mothers being the predominant care-givers in the family. See also Stec v. The United Kingdom (2006) ECHR 393 (European Court of Human Rights), for a discussion of the blurred line between taking into account ‘factual inequalities’ and perpetuating stereotypes.

  21. Mahadeb Jiew v. B.B. Sen, AIR 1951 Cal 563.

  22. See also Sucha Singh Bajwa v. State of Punjab, AIR 1974 P&H 162; Nalini Ranjan Singh v. State of Bihar, AIR 1977 Pat 171; for cases where this logic was applied to uphold educational segregation, see Anjali Roy v. State of West Bengal, AIR 1952 Cal 825; for similar reasoning in a case with similar facts from another jurisdiction, see Magaya v. Magaya (1998) SC 210/98 (Supreme Court of Zimbabwe); the reasoning is also somewhat similar to an interesting case argued before the High Court of Zambia, where the denial of entry to an unaccompanied woman to a bar was argued to not discriminate on grounds of sex alone, but on the grounds that the woman did not have male company. The high court rejected the argument. Longwe v. International Hotels, 1992/HP/765.

  23. In effect, the Court was saying that Article 15(1) was violated only when the discrimination was against all men, or all women. In technical terms, this mode of reasoning is known as the ‘comparator analysis’. See, e.g., Khaitan, A Theory of Discrimination Law, supra. See also, Hassam v. Jacobs (2009) (11) BCLR 1148 (Constitutional Court of South Africa).

  24. Legislatively, it would be ridiculously easy to achieve an end run around this. For example, a hypothetical legislature that wished to discriminate against women within the bounds of the law could simply exclude ‘all women below ten feet’ from accessing certain benefits. This would, in effect, include all women, but formally, the classification would still be drawn on the ‘grounds’ of sex and height, and not ‘only’ sex. A similar example is discussed by Lord Pannick and cited by the Supreme Court of Canada in Brooks v. Safeway Ltd., supra.

  25. R.S. Singh v. State of Punjab, AIR 1972 P&H 117.

  26. Ibid., ¶9, citing the 1908 United States Supreme Court judgement in Muller v. Oregon.

  27. Ibid., ¶17. See also Weatherall v. Canada, [1993] 2 S.C.R. 872 (Supreme Court of Canada). For a similar case from the United States, see Dothard v. Rawlinson, 433 U.S. 321 (1977), and Catherine MacKinnon’s critique of it in ‘Reflections on Sex Equality under Law’ (1991) 100(5) The Yale Law Journal 1281, 1305–06.

  28. Kapur, ‘Gender Equality’, supra, 742, 748. See also Kalpana Kannabiran, Tools of Justice: Non-Discrimination and the Indian Constitution (New Delhi: Routledge India 2012).

  29. A judgement that is broadly in line with such reasoning is Ambika Prasad Mishra v. State of UP, AIR 1980 SC 1762, where
a blatantly discriminatory land ceiling law which, among other things, did not count women as holders of land if their husbands were tenure holders, and counted only ‘adult sons’ for the purposes of extending the land ceiling, was upheld by the Court. This is a judgement of the Constitution Bench of the Supreme Court, and would therefore, in the ordinary course of things, require detailed analysis. The reason I have not included it in the body of the chapter, however, is that its ‘reasoning’ is so opaque and incoherent, it simply isn’t susceptible to constitutional critique. The judgement was authored by Justice Krishna Iyer who, not for the only time, uses language that does everything but make a point. What, for instance, is the meaning of the following lines, which constitute the core of the judgement? ‘But this legal sentiment and jural value must not run riot and destroy provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life’s realism is legislatively pragmatized. Such a scheme may marginally affect gender justice but does not abridge, even a wee-bit, the rights of women.’ (Ibid.) What does it mean to say that ‘if land-holding and ceiling thereon are organised with the paramount purpose of maximising surpluses without maiming woman’s ownership no submission to destroy this measure can be permitted using sex discrimination as a means to sabotage what is socially desirable …’? (Ibid.) Or that ‘Some of us may not be happy with the masculine flavour of this law but it is difficult to hold that rights of women are unequally treated, and so, the war for equal gender status has to be waged elsewhere …’? (Ibid.) For an assessment of this judgement, see Gautam Bhatia, ‘Jural Values Running Riot: The Strange Case of Ambika Prasad Mishra v. State of UP’, Indian Constitutional Law and Philosophy Blog, https://indconlawphil.wordpress.com/2016/06/02/jural-values-running-riot-the-strange-case-of-ambika-prasad-mishra-vs-state-of-up/ visited on 29 July 2017.

  30. Air India v. Nargesh Meerza (1981) 4 SCC 335.

  31. Ibid. The Court relied upon its prior judgement in C.B. Muthamma v. Union of India, AIR 1979 SC 1868, where Justice Krishna Iyer had used the phrase ‘handicaps of either sex’.