Constitutional Responses to Communalism in South Asia: The Case of India

Rongeet Poddar

West Bengal National University of Juridical Sciences

Horizontal application of fundamental rights – application against non-state actors – has been the subject of considerable debate globally. Indirect horizontal application of fundamental rights has been the favoured route for horizontal application in most jurisdictions, including in the United States where private law is subject to constitutional scrutiny. However, a few countries have also resorted to giving direct horizontal effect to their fundamental rights against private parties. The Constitution of Colombia is a notable example. Historically, the question of enforcing constitutional guarantees against non-state actors has arisen in the context of discrimination. India’s recent experiences of communalism raise the question once again, with potential lessons for other countries in South Asia and beyond experiencing these same challenges.

Communalism in India

In India, “communalism” describes the construction of group identity based on religious or ethnic status, and the associated exclusion of non-identified individuals from the group. In his seminal work, Identity and Violence (2006), Amartya Sen highlights how the root of communalism in India could be attributed to a “solitarist” approach to human identity. Such an approach sees human beings through the singular lens of religion and, as a result, a communalist may feel justified in practicing discrimination in their economic activities, such as food delivery, rental housing or taking a cab. The continued prominence, and some say rise, of communalism in India make it an issue that demands urgent constitutional attention.

Market Place Exclusion

With the introduction of liberal economic policies, markets are largely unregulated in India. The informal sector is the largest provider of employment today. Communalist discrimination thus has the potential to change the dynamics of the market in India by normalizing discrimination within the realm of private contracts. A question arises whether an anti-exclusionary constitutional response to this situation is possible. The Indian Constitution does not make explicit provision for holding private parties accountable for fundamental rights violations, as is the case in Colombia. It does, however, include, within its fundamental rights chapter, anti-discrimination provisions that may be applicable to private parties operating in the free market. Article 15(1) of the Constitution of India prohibits discrimination by the state against any citizen on the ground of religion. Article 15(2), however, deals with discrimination in relation to accessing “shops” and “places of public resort” that are either maintained by state funds or “dedicated to the use of the general public”.

Before the Supreme Court of India

The first articulation of anti-exclusionary constitutionalism in the private sphere came in Vishakha v. State of Rajasthan (1997). A writ petition was filed under Article 32 in the Supreme Court to safeguard the conditions of working women in India. The immediate cause for filing the petition was the sexual assault of a lower caste woman who was employed as a grassroots-level worker in the state government’s programme for the welfare of women. In its judgement, an activist Supreme Court laid down a set of guidelines for dealing with sexual harassment in the workplace that were also made applicable to the private sector. In this decision the Indian judiciary became responsive, for the first time, to the question of exclusion of women from private economic activities. It was a welcome recognition of the fact that the prevalence of harassment can deter women from joining the workforce and thus can violate the right to equality under Articles 14 and 15, the right to work with dignity under Article 19(1)(g) and the right to life under Article 21 of the Constitution. These guidelines became the genesis of a law dealing with sexual harassment in the workplace that was enacted in 2013 and that is applicable to non-state actors.

In IMA v. Union of India (2011), the Supreme Court of India was called upon to determine whether admission to a private medical college, on the sole basis of a score obtained in a standardized entrance test, violated Article 15(2). It was contended, and accepted by the Supreme Court, that this amounted to discrimination against educationally disadvantaged students. The Supreme Court’s decision has had the effect of expanding the traditional meaning of the term “shop” in Article 15(2) from merely an establishment selling merchandise to include any public offering of goods and services. This interpretation of Article 15(2) could lead to the term “shop” being construed in an abstract sense to include all private transactions in the marketplace.

Article 17 of the Constitution prohibits the practice of “untouchability” in “any form”. The roots of “untouchability” can be traced to the hierarchical order of purity and pollution that was enforced within the casteist Hindu society. By virtue of their “higher” birth, the upper castes asserted their superiority by monopolizing the performance of rituals while the lower castes were relegated to “polluting” activities such as cremation and manual scavenging. In Indian Young Lawyers Association v. State of Kerala (2018), the Supreme Court was called upon to review a Kerala High Court ban on the entry of women between the ages of 10 and 50 years into the Sabarimala Temple in Kerala. The Supreme Court broadly construed the meaning of “untouchability” to include religious practices that discriminate against menstruating women based on a cultural notion of impurity. Notably, Justice Chandrachud in his concurring majority opinion insisted that Article 17 must be interpreted as a “powerful guarantee to preserve human dignity against stigmatization and exclusion of individuals and groups on the basis of myriad forms of social hierarchism.” On this basis, religious discrimination in the marketplace that draws upon a conception of “pollution” may also be said to be contrary to the untouchability that Article 17 seeks to eradicate.

By contrast to the three cases just mentioned, the Supreme Court in the case of Zoroastrian Cooperative v. District Registrar (2005) preserved the validity of discriminatory by-laws of a cooperative housing society. The Zoroastrian Cooperative Housing Society imposed a restriction on the sale of housing spaces in the cooperative society to those who did not follow the prophet Zoroaster. This was upheld by the Supreme Court on the basis of Article 29 of the Constitution, which allows religious minorities to conserve their culture. (The Supreme Court was also cognisant of the fact that the parent legislation, the Bombay Co-operative Societies Act 1925, under which the housing society had been registered, did not impose any bar on having such discriminatory by-laws.) There was, however, no concrete reasoning offered to explain how living with other religious groups in the housing society threatened to dilute the culture of the minority Zoroastrian community. In any event, the judgement of the Supreme Court would only be applicable in specific situations requiring constitutional protection of the culture of a religious minority group. As such, this case has no precedential value in other circumstances where individuals from religious minorities are placed in a disadvantaged position in accessing public goods.

Anti-Exclusionary Constitutionalism

The most significant barrier to horizontal application, however, is party autonomy in contracts (freedom of contract). In my view, anti-exclusionary constitutionalism ought to override the autonomy of private parties to contract freely in certain circumstances. In particular, exceptions ought to be made when transactions in the market involve questions of access to housing, education, employment or supply of essential commodities and thereby retain a public character, in consonance to the Supreme Court’s landmark reading of Article 15(2) in IMA v. Union of India (2011). In India therefore, Articles 15 and 17 of the Constitution ought to be read expansively in order to curb religious discrimination when the bargaining power of market participants from minority religious groups is often undermined by communalists. While there have been attempts in India to enact comprehensive equality legislation, specifically addressing discrimination by non-state actors, this has thus far been unsuccessful because of a lack of political will. Until the legislature addresses the gap, it is for the judiciary to ensure the constitutional principle of equality is meaningfully given effect in law. It remains to be seen whether the jurisprudence of the Supreme Court will permeate Indian society and eliminate intolerance in the long run.

Rongeet Poddar is an undergraduate law student at the West Bengal National University of Juridical Sciences in Kolkata, India.

Suggested citation: Rongeet Poddar, “Constitutional Responses to Communalism in South Asia: The Case of India” IACL-AIDC Blog (14 November 2019), https://blog-iacl-aidc.org/2019-posts/2019/11/14/constitutional-responses-to-communalism-in-south-asia-the-case-of-india