“No flats for Muslims in Bandra,” reported the Times of India last month. Housing discrimination against Muslims has become a distressingly pervasive feature of our social landscape over the past few years, from New Delhi to Ahmedabad to Mumbai, and across the country (even the central government has taken notice, promising to set up an Equal Opportunities Commission to look into the matter). In short: it is common practice to deny a house, otherwise generally available on rent, to a person because of their religion.
This should hardly come as a surprise. The continued subordination of groups by excluding them from normal economic life has been a staple feature of stratified societies. It was the fate of Jews in Europe throughout the middle ages. It was a hallmark of apartheid South Africa. And it was ubiquitous in the United States during the infamous Jim Crow era.
Housing apartheid, as The Hindu described it, seems to be a straightforward violation of the Constitutional guarantees of equality (Article 14) and anti-discrimination (Article 15(1)). The problem, however, is that our fundamental rights are enforceable only against State action, and do not apply to private conduct. Yet this only begs the question. At a moral level, inequality and discrimination, especially when they target vulnerable and minority groups, are social evils— whether they are performed by the State, or by individuals. Why then should a victim have a remedy only in the former case?
In order to understand why fundamental rights are limited to guarantees against state action, it is important to understand their genealogy. Part III of our Constitution— our fundamental rights chapter—is heir to the intellectual tradition of liberalism that had its earliest inception in the English Glorious Revolution in 1688, and its subsequent instantiation in the American and French Revolutions of the late 18th century. Each of these revolutions produced a bill of rights, framed in universal language. Yet the English and French revolutions, in particular (and the American borrowed much of its tenor from the English) were driven by a rising bourgeoisie class against the dying vestiges of feudalism. The bourgeoisie were most concerned with State incursion and control that would hamper their expanding economic activities at the time. Consequently, it is hardly surprising that their bills of rights— the ultimate guarantees of their freedom— although speaking in universal terms, ended up reflecting, in actuality, the interests of that class. Central to that was a distinction between the public and the private domains. The function of a bill of rights was to wall off a private domain where individual actions and individual relations were no longer subject to the writ of the State.
According to political theorist Seyla Benhabib, the division of the world into public and private occurred across three axes. First of all, and partly in response to the destructive religious wars that were tearing Europe apart, moral and religious conscience was placed within the private sphere. Secondly, and for obvious reasons, stress was laid on economic liberties, understood to be guaranteed by the State’s non-intervention in the “free flow of commodity relations, and… non-intervention in the free market of labour power.” And thirdly, the intimate sphere— the domain of the household, sex and reproduction, was a private domain beyond State power.
By addressing bills of rights exclusively to state action, and by creating protected zones under the rubric of the “private sphere”, modern 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 went entirely untouched and unregulated. A classic example of this was the inequality of bargaining power between industrialists and labourers, that— throughout the nineteenth century heyday of industrial capitalism— led to highly exploitative contracts and terrible working and safety conditions, all of which the State refused to regulate.
It is upon this aspect of liberal rights that Marxist and feminist critiques have focused ever since. The young Marx, writing in On the Jewish Question, differentiated between the mere “political emancipation” that liberal rights guaranteed, with complete “human emancipation”, which would come about only after the abolition of class domination. 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.
When placed against this historical background, our own constitutional scheme— and the nature of our fundamental rights— becomes explicable. Historically, liberal rights— the kind that we find in our Constitution— simply have not viewed private relations as within their sphere of control.
Enter, however, Article 15(2) of the Constitution, which states:
“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.”
We see an immediate departure from the basic idea of liberal rights that we have been discussing above. Article 15(2) applies the right to non-discrimination horizontally, that is, between private individuals, departing from the norm of applying rights vertically (between individual and state). However, it seems to do so only with respect to a disappointingly small and specific set of categories— shops, public restaurants, hotels and places of public entertainment.
However, while that might appear to be true at first glance, an investigation into the history of this article reveals that it was meant to be anything but narrow and specific. Indeed, its intended scope was truly revolutionary.
The article was debated in the Constituent Assembly on the 29th of November, 1948. What was at issue, in particular, was the meaning of the word “shops”. Shri Nagappa asked specifically whether “shops” included not just places where goods were bought, but also included contracting for services— with barbers or with washermen. 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, and not clause-by-independent clause. Indeed, Shibban Lal Saksena objected to Article 15(2) precisely because he thought it had a far-reaching character, one that would compel Hindus to go against their religious (as well as casteist) practices involving food. Ambedkar— who was pivotal in the drafting of the provision— then rose to answer. “A shop”, he said, “is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service.” Did it include doctors and lawyers, he was asked. His answer was definitive: “It will include anybody who offers his services. I am using it in a generic sense.”
The discussion between Ambedkar and his interlocutors reveals the revolutionary scope of Article 15(2), embodied in the innocuous word “shops”. There is, of course, a set of standard uses of the word, as the Merriam-Webster Dictionary has it: “a building or room where goods are stored“, “a building stocked with merchandise for sale“, or “a small retail establishment or a department in a large one offering a specified line of goods or services”. But Ambedkar’s comments reveal that the meaning he had in mind was an extremely abstract, rarefied— or, in his terms— “generic” usage. A shop is any place where an abstract seller x offers an abstract thing y to an abstract buyer z. Or, in other words, “shop” was meant to embody the idea of the impersonal, abstract market of the modern liberal-capitalist economy.
Thus, through Article 15(2), Ambedkar intended to entirely upend the liberal model of rights that we have discussed above. Economic transactions were to be taken from the realm of the private sphere, and subjected to the law of non-discrimination. Nor, on second thoughts, should this be very surprising. It was Ambedkar who perhaps, among all the members of the Constituent Assembly, best understood how the worst forms of domination and violence in Indian society were private, not public, and economic, not physical. Indeed, and tellingly, on 22 November 1949, towards the very end of the drafting process, when Ajit Prasad Jain discussed the provision, he did so by grounding it in a long history of discrimination against women, scheduled castes, untouchables and other groups, discrimination that had blighted Indian society— and had been undertaken not by the State, but by individuals of dominant social classes.
Article 15(2), therefore, sought to root out the most pernicious instantiations of the caste system, and the only way it could do so was through a radical break with the traditional liberal model of rights against the State that guaranteed zones of autonomy and freedom of action— because it was precisely within those zones— as feminists and Marxists have long argued— that exploitation was rife and unchecked.
Unfortunately, the Indian constitutional discourse has largely failed to take this seriously. In 2005, the Supreme Court invoked Article 19(1)(c) and the freedom of contract to uphold a Parsi housing cooperative’s exclusion of non-Parsis. While the decision may be justifiable on the grounds of protecting minority rights of self-identification and self-expression, as a general rule, it has only led to legitimizing the housing apartheid discussed above. There is a sign of change, however. In 2011, the Supreme Court directly cited Ambedkar’s speech to bring schools within the ambit of Article 15(2). The only justification for counting “schools” as “shops” is, of course, by adopting the abstract definition of a shop as any place where a commercial transaction takes place. Whether the Supreme Court now takes the argument to its logical conclusion, and expressly lays out the theoretical justification for Ambedkar’s reading of 15(2), remains to be seen. But it shows us that the tools to combat the pernicious and socially destructive anti-Muslim discrimination that takes a particularly virulent form in housing apartheid are present— and they are present in the text of our Constitution.
Our fundamental rights— the rights to equality, free expression, freedom of conscience, and the rest— are part of a worthy tradition of political liberalism that we should strive to protect and defend. There are some problems, however, that political liberalism cannot solve. Ambedkar understood that. He also understood that an open, pluralist and inclusive democracy does not and ought not to use contract law and private economic relations as weapons to marginalize its own citizens. We can best honour his legacy by rediscovering the lost radicalism of Article 15(2).
Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.
