THE CONTINGENCY OF THE PUBLIC/PRIVATE DIVIDE: THE CASE OF INDIA
It is almost trite to argue that there is nothing ‘natural’ about the default vertical approach, and that it arose out of a specific and contingent set of historical circumstances.[103] Such is the dominance that it has exercised over contemporary constitutional imagination, however, that it is often difficult to imagine what an alternative may look like.
As I shall argue in chapters two and three, even jurisdictions that consciously attempt to depart from the default vertical approach continue to operate within the framework of at least one - if not more - of the founding assumptions outlined above.The contingent character of those assumptions is revealed, however, when we consider certain provisions of the Indian Constitution. I shall examine the case of the Indian Constitution in greater detail in chapter five, and restrict myself to an outline here. At first glance, the Indian Constitution’s bill of rights suggests that it fits comfortably within the contours of the default vertical approach. The bill of rights begins with a definition of the ‘state’,[104] and contains a series of familiar-sounding proscriptions upon state power.[105] This is unsurprising. As a survey of the Constituent Assembly Debates reveals, the framers of the Indian Constitution were (not atypically) heavily influenced by prominent constitutional models in existence at the time: primarily, the US model, but also the constitutions of Ireland and Japan (among others), which did not, in any significant way, depart from the default vertical approach.
However, the story does not end there. The bill of rights also has four provisions that apply inter se between private parties. Article 15(2) (a) of the Constitution stipulates that
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.[106] Article 17 states that ‘“Untouchability” is abolished and its practice in any form is forbidden’.[107] Article 23(1) provides that ‘traffic in human beings and begar and other similar forms of forced labour are prohibited’.[108] And Article 24 prohibits child labour in hazardous industries.[109]
There is a family resemblance between these provisions of the Indian Constitution and the Thirteenth Amendment of the US Constitution (which shall be discussed in chapter five).
Beyond that, however, what is immediately noticeable about these provisions is their specificity. Unlike departures from the vertical model (considered in chapters two and three) that are framed in the language of principle - such as the ‘public function test’ or ‘indirect horizontality’ - leaving courts to provide concrete content to the stated principle on a case-by-case basis, the provisions of the Indian Constitution refer to a very categorical set of acts, and make no reference whatsoever to the state. This suggests that at the time of the framing of the Indian Constitution, there existed a set of known injustices that were inflicted by non-state parties and that were salient enough to be directly proscribed under the Constitution, instead of leaving it up to Parliament. Constitutional history supports this point. The debates around these clauses were accompanied by vivid illustrations of what the framers had in mind: barbers’ salons under Article 15(2),[110] stigmatic social practices under Article 17[111] and inter-generational debt-bondage under Article 23[112] (among other things). One of the purpose(s) of the Indian Constitution, therefore, was evidently to address these specific ‘legacies of injustice’.[113]What were these injustices that prompted a departure from the premises of the default vertical model? A clue to the provenance of the horizontal rights provisions in the Indian Constitution is available in legal history. Commentators have pointed out how a distinctive feature of pre-colonial governance in India was the idea of ‘layered sovereignty’: a significant part of what we consider ‘lawmaking’ today was the domain of ‘self-regulating communities’, which were independent with respect to their ‘internal organization’.[114] Crucially, from its very beginning, colonial rule was characterised by a (tactical) policy of leaving this structure largely intact. As early as 1792, it was stated British policy that there would be no interference with the ‘personal laws’ of the communities.[115] The very use of the phrase ‘personal law’ is telling, demonstrating that what we understand today as ‘law-making power’ (including, in the Indian case, the rules governing marriage, divorce, tenancy and inheritance) was habitually exercised by non-state parties (albeit, admittedly, with the sufferance of the colonial ‘sovereign’).
Consequently, the unitary conception of sovereignty that lies at the heart of the default vertical approach arguably did not possess the kind of normative salience during the evolution of rights-thinking in colonial India.It is therefore unsurprising that as the language of rights developed and evolved in colonial India, it took two distinct forms: the familiar language of civil and political rights against despotic foreign rule, but also a vocabulary of rights available to individuals against community-based action, which had no state involvement of any kind. This vocabulary included the rights of women in the context of patriarchal family structures. For example, the nineteenth century saw three great movements involving the rights of widows to remarry, raising the age of consent and ending the practice of sati (the burning of a widow on her husband’s funeral pyre). In all these movements, women as rights-bearing subjects were framed more in opposition to the community than to the state.[116]
In the period following shortly after, there were movements, as well, for recognition of rights against community-sanctioned ostracism and exclusion, primarily organised along the lines of caste. From the latter part of the nineteenth century, the colonial government had begun to receive petitions and complaints from individuals about social and spatial segregation, which was enforced by caste diktats.[117] In the twentieth century, these complaints evolved into the language of civil rights and public law, but directed against the operation of such social interdicts. For example, in one of his first legal submissions to the government, BR Ambedkar - who would later become the main draftsperson of the Indian Constitution - insisted on an ‘anti-boycott law’, which would penalise the practice of social and economic boycotts inflicted by dominant castes upon subordinate castes.[118] In the succeeding years, various government committees recognised the reality of a socially sanctioned, but highly effective, network of prohibitions and exclusions, ranging from the occupation a person could undertake to the public utilities that she could access.
For this reason, some of the early legislative proposals to deal with the issue not only proposed outlawing discriminatory laws, but also ‘customs or usages’[119] (emphasis added) (ie longstanding traditional patterns of behaviour) that had discriminatory effect. It was these insights that eventually found their way into the Indian Constitution through Article 15(2), which prohibits denial of access or service in the ‘private’ economic domain.The nature of the powers exercised by groups also reveals why, in addition to sovereignty, assumptions about freedom and individual responsibility also did not (necessarily) limit the imagination of the constitutional framers. It would, after all, be difficult to argue that in the context of layered sovereignty, where groups exercised systematic coercive power through a range of social and economic sanctions, ‘freedom’ was what remained after constraining only state power. In a society where economic boycott was regularly used as a method of enforcing social discipline, it would be equally difficult to argue that freely contracting individuals faced each other as abstract equals in a horizontal plane. It is therefore my contention - which I shall develop in greater detail in chapter five - that a history in which groups, communities and institutions exercised power in their respective domains, distinct and separate from the state, meant that the default vertical approach did not enjoy the kind of monopoly over the minds of the framers of the Indian Constitution that it did elsewhere. Consequently, as observed above, while most of the provisions of India’s fundamental rights chapter do indeed apply to the state, the Constitution also contains a set of provisions that appear to flow from an entirely distinct constitutional imagination, one that is not constrained by the assumptions underlying the default vertical approach and accords no special role for the state.
This is also because by 1947, more than 150 years after the framing of the US bill of rights, there had been ample time to study the default vertical approach and draw upon it, but also learn from its errors.
Tellingly, in an initial Note to the Constituent Assembly on the subject of fundamental rights, BR Ambedkar singled out the default vertical approach, and criticised the assumption of ‘constitutional lawyers’ that ‘the enactment of fundamental rights is enough to safeguard their liberty and that nothing more is called for... that where the State refrains from intervention in private affairs - economic and the social - the residue is liberty’.[120]Noting further that
the useful remedy adopted by democratic countries... to limit the power of Government to impose arbitrary restraints in political domain and to invoke the ordinary power of the legislature to restrain the more powerful individual from imposing arbitrary restraints on the less powerful’ (emphasis added)[121] had proven ‘inadequate’, Ambedkar outlined an alternative vision that would take into account differential, institutional power relations within society. It is this vision - largely passed over in silence in comparative constitutional literature - that (as I shall argue in chapter five) helps us to construct a convincing model of horizontal rights. This is a model that does not suffer from the shortcomings of the existing (chapters two and three) models that continue to place the state at the centre of the analysis.
VIII.