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Horizontal Discrimination and Article 15(2) of the Indian Constitution: A Transformative Approach

  • Gautam BHATIA (a1)
Abstract

This article explores horizontal non-discrimination rights under the Constitution of India (Indian Constitution). The Indian Constitution is unique in that it expressly prohibits private discrimination on the grounds of sex, race, caste, religion, etc. for the purpose of, inter alia, “access to … shops” (Article 15(2)). The article argues that a historically grounded understanding of the word “shops”, in the context of the transformative purposes of the Indian Constitution, necessitates a broad reading that covers all private economic transactions where goods and services are offered to the public at large. Furthermore, seemingly contrary Supreme Court precedent, if it is constitutionally justifiable, must be restricted to its own facts. In sum, Article 15(2) of the Indian Constitution provides a radical constitutional remedy that is directly horizontally applicable to private conduct, and goes far beyond remedies developed in other jurisdictions, which have often needed to turn to legislation in order to adequately combat private discrimination in the economic and social sphere.

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BCL, MPhil (University of Oxford), LLM (Yale Law School). Visiting Faculty, West Bengal National University of Juridical Sciences, Kolkata, India. I thank Tarunabh Khaitan, Jawahar Raja, Krishnaprasad KV, V Niranjan, Christopher McConnachie, Malavika Prasad, and Shreya Atrey, for helpful discussions on various aspects of this article. I am also grateful to the organizers and participants at the Discrimination Workshop at the National Law School of India University in December 2014, and the organizers and participants of the Public Law Conference at the National Law University, Delhi in April 2015, where earlier drafts of this paper were presented and discussed. Lastly, thanks are due to two anonymous peer reviewers, whose acute comments greatly helped in sharpening the arguments of this article.

Footnotes
References
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1. Press Trust of India, “Govt to Set Up Equal Opportunities Commission for Minorities” The Times of India (20 February 2014) and The Hindu (20 February 2014); Express News Service, “Cabinet Clears Equal Opportunities Panel” The Indian Express (21 February 2014).

2. E.g., the United States Equal Employment Opportunity Commission and United Kingdom Equality and Human Rights Commission.

3. Prime Minister’s High Level Committee, Social, Educational and Economic Status of the Muslim Community of India: A Report (New Delhi: Ministry of Human Resource Development, 2006), online: Ministry of Human Resource Development <http://mhrd.gov.in/sites/upload_files/mhrd/files/sachar_comm.pdf>.

4. Fair Housing Act, 42 USC ss 3601 – 3619 (1968) (United States).

5. For example, Article 19(1)(c) of the Constitution of India expressly guarantees the freedom of association.

6. CHEMERINSKY, Erwin, “Rethinking State Action” (1985) 80(3) Northwestern University Law Review 503 at 536 .

7. KOPPIKAR, Smruti, “How Bias Against Muslim Flat Seekers Came to Be Entrenched in India’s Most Cosmopolitan City” Scroll (28 May 2015), online: Scroll <http://scroll.in/article/730409/how-bias-against-muslim-flat-seekers-came-to-be-entrenched-in-indias-most-cosmopolitan-city>.

8. Constitution of India 1949, art 14.

9. Ibid, art 15(1).

10. For a guide to the debate, see SAJO, Andras and UITZ, Renata, eds, The Constitution in Private Relations: Expanding Constitutionalism (The Hague: Eleven International Publishing, 2005).

11. For a recent, comparative study of transformative constitutionalism, see VILHENA, Oscar, BAXI, Upendra, and VILJOEN, Frans, eds, Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa (Pretoria: Pretoria University Law Press, 2013).

12. See generally BROOKS, Richard RW and ROSE, Carol M, Saving the Neighbourhood: Racially Restrictive Covenants, Law, and Social Norms (Cambridge: Harvard University Press, 2013).

13. Cases dealing with restrictive covenants, as we shall see below, have involved blacks in the United States and South Africa, and Jews in Canada and the United Kingdom.

14. GARDBAUM, Stephen, “The “Horizontal Effect” of Constitutional Rights” (2003) 102(3) The Michigan Law Review 387 at 417 .

15. See e.g. GARDBAUM, Stephen, “Where the (State) Action Is” (2006) 4(4) International Journal of Constitutional Law 760 .

16. Shelley v Kraemer 334 US 1 (1948).

17. US Constitution, amend XIV.

18. Shelley v Kraemer, supra note 16 at 13.

19. Under the US Constitution’s Supremacy Clause, the Constitution binds State courts. US Constitution, art VI S 1, cl 2.

20. Shelley v Kraemer, supra note 16 at 19.

21. See e.g. KENNEDY, Duncan, “The Stages of Decline of the Public/Private Distinction” (1982) 130 University of Pennsylvania Law Review 1349 at 1352 .

22. TRIBE, Laurence, Constitutional Choices (Cambridge: Harvard University Press, 1985) at 259-260 .

23. Re Drummond Wren [1945] OR 778 (Ont HC).

24. Ibid at para 20.

25. Ibid at para 30.

26. Ibid at para 31.

27. Noble v Alley [1951] SCR 64.

28. Ibid at 70, following Clayton v Ramsden [1943] 1 All ER 16.

29. Curators v The University of Kwa-Zulu Natal [2011] 1 B Const LR 40 (SCA) [Curators].

30. Ibid at para 35.

31. Ibid at para 36.

32. Ibid at para 38 (quoting Napier v Barkhuizen [2006] 4 S Afr LR 1 (SCA), para 7 [Napier]).

33. See BRINKTINE, Ralf, “The Horizontal Effect of Human Rights in German Constitutional Law” (2001) European Human Rights Law Review 421 .

34. BVerfGE 7 198.

35. Curators, supra note 29 at para 38(quoting Napier, supra note 32, para 7).

36. Vishaka v State of Rajasthan JT 1997 (7) SC 384.

37. See infra s II.

38. R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.

39. Zoroastrian Cooperative Housing Society Limited v District Registrar Cooperative Societies (Urban) (2005) 5 SCC 632 [Zoroastrian Cooperative].

40. Constitution of India 1949 , art 19(1)(c).

41. Ibid , art 29.

42. Zoroastrian Cooperative, supra note 39 at para 9.

43. Ibid at para 10.

44. Article 15(1) of the Constitution prohibits the State from discriminating against citizens on grounds of, inter alia, caste. The framers’ preoccupation with caste is reflected in other parts of the Constitution as well. Article 17 prohibits “untouchability”, the most invidious avatar of caste-based discrimination. Article 25(2)(b) carves out an exception to the principle of religious freedom by allowing the State to make laws that compel Hindu temples to admit entry to all “sections” of Hindus.

45. Zoroastrian Cooperative, supra note 39 at para 13.

46. Indian Contract Act 1872, s 23.

47. See the observations in Sargunam Ammal v Jayarama Padayachi (1994) 1 LW 139, following Gobindaswami Dasi v Radha Ballabha Dasi (1910) 15 CMN 205.

48. Held as early as Bani Muncharam v Regina Stanger ILR 32 Bom 581.

49. Delhi Transport Corporation v DTC Mazdoor Congress AIR 1991 SC 101.

50. Ibid at para 15.

51. Ibid at para 19.

52. Ibid at para 33.

53. Ibid at para 29.

54. These limits are restricted to the sovereignty and integrity of India, public order, and morality. Constitution of India 1949 , art 19(4).

55. See e.g. Parliament of India, The Constituent Assembly Debates – Vol II (22 January 1947), online: Parliament of India <http://parliamentofindia.nic.in/ls/debates/vol2p3.htm>.

56. See e.g. NAACP v Patterson 357 US 449 (1958).

57. See e.g. State of Madras v VG Row AIR 1952 SC 196.

58. Zoroastrian Cooperative, supra note 39 at para 29.

59. Zoroastrian Cooperative, supra note 39 at para 33.

60. Constitution of India 1949 , art 29.

61. Parliament of India, Constituent Assembly Debates – Vol VII (8 December 1948), online: Parliament of India <http://parliamentofindia.nic.in/ls/debates/vol7p22.htm>.

62. Ibid.

63. See e.g. Ahmedabad St Xavier’s College v State of Gujarat AIR 1974 SC 1389.

64. See KYMLICKA, Will, “The Rights of Minority Cultures: Reply to Kukathas” (1992) 20(1) Political Theory 140 at 140 .

65. Constitution of India 1949 , Schedules V & VI.

66. Samatha v State of Andhra Pradesh (1997) 8 SCC 191 at para 12.

67. Admittedly, by virtue of the 97 th Amendment to the Constitution, passed in 2012, the term “cooperative societies” has been added to Article 19(1)(c) of the Constitution. This does amount to a post facto validation of the Court’s holding that membership in a Cooperative Society is protected by Article 19(1)(c). It does not, however, affect my argument: a fundamental right to the freedom to form cooperative societies does not necessarily imply that every act carried out by a Cooperative Society – including acts that exclude persons from arm’s length economic transactions on the basis of prohibited markers under Article 15(1) (as was the case in Zoroastrian Cooperative) – are ipso facto valid.

68. Constitution of India 1949 art 15(2).

69. Indian Medical Association v Union of India (2011) 7 SCC 179.

70. Ibid at para 113.

71. All these definitions may be found in the Merriam-Webster Dictionary, online: Merriam-Webster <http://www.merriam-webster.com/dictionary/shop>.

72. I thank Krishnaprasad KV for pushing me to ensure greater clarity on this point.

73. Boy Scouts of America v Dale 530 US 640 (2000); Gould v Yukon Order of Pioneers [1996] 1 SCR 571.

74. See KHAITAN, Tarunabh, A Theory of Discrimination Law (Oxford: Oxford University Press, 2015).

75. Ibid at 203-209.

76. Constitutional interpretation often requires attempting to decipher whether a generally worded term covers a concrete situation (e.g., does the “equal protection clause” of the American Constitution mandate desegregation?), and – as in this case – vice versa. An interesting way of understanding such situations is provided by Professor Jed Rubenfeld in his book, Revolution by Judiciary. Rubenfeld proposes the following hypothetical: Odette is married to Swann, and cheats on him with Duke. Ashamed, she vows that she will never deceive Swann again. This vow – or “commitment” – is generally worded. Rubenfeld then 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 not 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. RUBENFELD, Jed, Revolution by Judiciary (Cambridge: Harvard University Press) at 104 – 121 .

Let us now reverse the hypothetical. 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. This shows that in certain situations, history tells us that a principle framed in concrete terms nonetheless has broader applications that go beyond the specific context in which it was framed.

77. Parliament of India, Constituent Assembly DebatesVol VII (29 November 1948), online: Parliament of India <http://parliamentofindia.nic.in/ls/debates/vol7p15.htm>.

78. Ibid.

79. Ibid [emphasis added].

80. Ibid.

81. Ibid.

82. Parliament of India, Constituent Assembly Debates – Vol XI (22 November 1949), online: Parliament of India <http://parliamentofindia.nic.in/ls/debates/v11p8m.htm>.

83. See TUSHNET, Mark, “The Issue of State Action/Horizontal Effect in Comparative Constitutional Law” (2003) 1(1) International Journal of Constitutional Law 79 .

84. Constitution of India 1949, Preamble.

85. I develop this idea in much greater detail in BHATIA, Gautam, “Comprehensive Transformative Amendments” (2015) 13(1) Dartmouth Law Journal 1 .

86. ARENDT, Hannah, The Human Condition, Part II (Chicago: University of Chicago Press, 1985).

87. Madras Bar Association v Union of India (2014) 10 SCC 1.

88. Ibid at para 85.

89. Virendra Singh v State of Uttar Pradesh [1955] 1 SCR 415.

90. Ibid at para 43.

91. RAWLS, John, Political Liberalism (New York: Columbia University Press, 1993) at 65 .

92. Bhatia, supra note 85.

93. See SIEGEL, Reva, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family” (2002) 115(4) Harvard Law Review 948 .

94. Frontiero v Richardson 411 US 677 (1973); US v Virginia 518 US 515 (1996).

95. This schema was originally proposed by Habermas. See FRASER, Nancy, “What’s Critical About Critical Theory? The Case of Habermas and Gender” (1985) 35 New German Critique 97 at 112 .

96. See e.g. BENHABIB, Seyla, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (New York: Routledge, 1992).

97. And thus also, a central tenet of contemporary feminism has been a challenge to the very concept of “privacy”. Feminists have argued that privacy rights serve to mask and legitimize violence and oppression within the family.

98. See e.g. HOBBES, Thomas, Leviathan (1651), online: Gutenberg Project <http://www.gutenberg.org/files/3207/3207-h/3207-h.htm>; BODIN, Jean, Six Books of the Commonwealth, trans by MJ TOOLEY (Oxford: Basil Blackwell, 1955), online: <http://www.constitution.org/bodin/bodin_.htm>. MARITAIN, Jacques, “The Concept of Sovereignty” (1950) 44(2) The American Political Science Review 343 at 345-346 .

99. See e.g. WOOD, Gordon, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969).

100. KAVIRAJ, Sudipta, Trajectories of the Indian State: Politics and Ideas (Ranikhet: Permanent Black, 2010).

101. Ibid.

102. Borrowing from Gramsci, Partha Chatterjee calls this a “passive revolution”. See e.g. CHATTERJEE, Partha, Nationalist Thought and the Colonial World (Minneapolis: University of Minnesota Press, 1986).

103. SARKAR, Tanika, “A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal” (2000) 26(3) Feminist Studies 601 at 606 . See also SARKAR, Tanika, “Something Like Rights? Faith, Law and Widow Immolation Debates in Colonial Bengal” (2012) 49 Indian Economic and Social History Review 295 .

104. “The Constitution of India Bill, 1895”, cf B Shiva RAO, The Framing of India’s Constitution: Select Documents, vol 1 (Delhi: Universal Law Publishing Co, 1967) at 5; “Congress Resolution on Self-Determination”, 1918, cf B Shiva Rao, ibid at 31; “The Nehru Report”, 1928, cf B Shiva Rao, ibid at 58.

105. VERMA, Vidhu, “Colonialism and Liberation: Ambedkar’s Quest for Distributive Justice” (1999) 34(39) Economic and Political Weekly 2804 at 2806 .

106. See e.g. SINHA, Mrinalini, Spectres of Mother India: The Global Restructuring of an Empire (Durham: Duke University Press, 2006).

107. Constitution of India 1949 , art 17.

108. Ibid, art 23.

109. Ibid, art 25(2)(b).

110. PUDR v Union of India AIR 1982 SC 1473.

111. Ibid at para 20.

112. Constitution of India 1949, art 15(2)(a).

113. Ibid , art 15(2)(b).

* BCL, MPhil (University of Oxford), LLM (Yale Law School). Visiting Faculty, West Bengal National University of Juridical Sciences, Kolkata, India. I thank Tarunabh Khaitan, Jawahar Raja, Krishnaprasad KV, V Niranjan, Christopher McConnachie, Malavika Prasad, and Shreya Atrey, for helpful discussions on various aspects of this article. I am also grateful to the organizers and participants at the Discrimination Workshop at the National Law School of India University in December 2014, and the organizers and participants of the Public Law Conference at the National Law University, Delhi in April 2015, where earlier drafts of this paper were presented and discussed. Lastly, thanks are due to two anonymous peer reviewers, whose acute comments greatly helped in sharpening the arguments of this article.

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Asian Journal of Comparative Law
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