A thread on some quotes from @gautambhatia88’s “The transformative constitution “In equality jurisprudence, the approach of focusing on the disproportionately exclusionary impact if politics rather than their formal character or motive is known as disparate impact”
“It is based on the premise that inequality and discrimination result not (only) from individual hostile acts, but from structures and institutions.” @gautambhatia88 Only in brackets important & added by me.
An test for entry may be “neutral” but yet exclude by aligning with exclusionary institutions; if an physical entrance test for firefighter includes activities not necessary for fulfilling duties and unintentionally poses #gender-barriers, deserves to be struck down. #NoteToSelf
In a US SC case (Shelley), the court refused to apply principles of equal protection under law to strike down explicitly discriminatory laws governing private contracts on grounds that this is a private/horizontal exchange between willing individuals #NoteToSelf
Judicial interpretation of sanctity of private individual contracts especially where they violate wider constitutional principles is complex; private contracts have public consequences; ought to be governed by wider principles than private parties’ prejudices IMO #NoteToSelf
Justice Mackay “nothing could be more calculated to create or deepen divisions between existing religious & ethnic groups...than the sanction of a method of land transfer which would permit segregation & confinement of particular groups to particular business/residential areas”
Many common law precedents to void otherwise legal private contracts between private individuals which violate #PublicPolicy Eg. discriminatory housing/property contracts #NoteToSelf
In 2010 landmark judgment #SouthAfrica Supreme Court voided private will based endowment to University for furthering white women tertiary education; higher education institutions cannot hide behind private testaments to violate equality principles #NoteToSelf
“These (constitutional) values are not to be invoked only against State action, but also have a radiating effect serving as background interpretive principles for adjudicating private law disputes” @gautambhatia88
In Zoroastrian cooperative case, Indian SC “held that a private contractual arrangement is not subject General fundamental rights scrutiny, but only under the patent legislation”; thus allowing individual private prejudice to enter into legally sanctified contracts #NoteToSelf
How can we reconcile the rights of minorities to NOT assimilate if they so desire with wider constitutional #PublicPolicy principles; Zoroastrian cooperative case as discussed in book #NoteToSelf; roots in #Ambedkar protection of minorities in a “linguistic & cultural sense”
Invoking @tarunkhaitan, the imperative of non-discrimination has to be balanced against the legitimate right to autonomy in private relationships; hence non-discrimination law ought to modulate only certain private relationships: tenancy, service delivery #NoteToSelf
And the way to determine this is the “public character” of such relationships and if and how they affect people’s ability to lead a dignified life by cutting off access to important physical & social infrastructure #NoteToSelf
Constitutional debates Nagappa, Saxena, #Ambedkar reject idea of a shop/business (including doctors/lawyers) as a private place for practising individual choice in favour of a public place where exclusionary practices are 🚫, preferring inclusive outcomes over private freedoms
Several western origins of civil liberties were in the context of securing protected private spheres from a dominant and intrusive State; need to distinguish this from the libertarian underpinnings of Indian constitutional debates #NoteToSelf
“...unlike the American and French revolutions the Indian pre-independence discourse of freedom had twin focal points: political independence from authoritarian colonial power as well as horizontal independence from an exclusionary system of authority and control...
... manifested most clearly in various reform movements in the emancipation of women and the eradication of the #caste system. The vocabulary of rights was central to both foci”
#bhakti poet Ravidas imagined utopian ideal of his kin walking where they want to “ ...demonstrates that the struggle for social justice in a society riven by caste has always included a focus on access and exclusion” #healthequity #SDOH
Lovely chapter 5 on reconciling constitutional guarantees to religious groups with individual rights to non-discrimination as well as state’s role in ensuring dignity & respect in “private” non-state social and economic transactions and societal institutional arrangements
“understanding of religious freedom under Constitution is incomplete without acknowledging that provisions are nested within #fundamentalrights chapter that in various contexts & ways attempts to grapple with relationship between three actors: individual, community & the State”
Potential grey area: what if religious freedom rights accorded to groups conflicts with individual rights of its individual constituents; unclear demarcations between religious freedom & secular provisions that allow State to recalibrate relationships in groups #NoteToSelf
“constitutional courts in the US Canada and Europe have established limits upon the extent to which individuals or groups can engage in religious practises that might conflict with the civil law of the state...
“... But for the most part they have refused to impose an external point of view upon whether a practice religious or not and how important it is to its adherents”
“indeed #Ambedkar’s original formulation seemed to be precisely oriented towards denying religious groups sweeping power over constituents. What Ambedkar & constitutional text did not do however was provide a test or a set of principles for distinguishing religious from secular”
#NoteToSelf The need for a framework to identify a boundary between religious and secular becomes important because of the latter subjection to regulation while the former is constitutionally guaranteed freedom congratulation
When courts began to determine “what is essential to the practice of religion” (as an interpretation of religious freedom) this “effectively gave them substantial powers of intervention into religion: a direction that had clearly not been contemplated by the framers”
“for this reason the argument goes the Constitution itself exhibits a reformist intention and in interpreting it Indian courts cannot adopt the hands-off deferential approach to religion that is the hallmark of other (liberal) constitutional courts”
“The court’s enquiry privileges certain set of sources & has effect of homogenizing religious meaning at cost of dissident & marginalised traditions. This of course is part of broader critique that questions court’s competence & legitimacy to adjudicate religious truth”
“The Constitution limits the power of groups & communities to exclude their constituents in a manner that would interfere with their freedom to participate in normal economic social and cultural life and thereby disrupting secured access to basic goods“
*constitutionally
Rather than invoking the essential religious practices test to adjudicate challenges to religious freedom, the chapter posits that the constitution’s underlying anti-exclusion principle may instead be much more in alignment with what the framers intended #NoteToSelf
The constitution’s anti-exclusion principle spares the court from having to deep-dive into being religious arbiter “by shifting the analysis from the content of religious conduct and practice to its discriminatory effect”
“The constituent assembly agreed with #Ambedkar when he specifically argued that it wasn’t really the State but the social system, the community (including religious groups) whose actions conflicted with individual rights and would accordingly have to be reformed.”
“The specific sites of reform of course have to be historically understood and...defined by the manner of discrimination which primarily took the form of economic social and cultural exclusion.” #SDOH
Critiquing liberal idea of freedom as non-interference “to insist upon identifiable agent who either interferes or is in position to exercise arbitrary power in freedom-infringing ways ignores a crucial insight about nature of power and domination in modern society” (#Foucault)
“ The non-sovereign socially distributed character of human agency entails that power is really focused or concentrated in an identifiable centre but operates through multiple nodes and at various levels: it is structural“
“Sharon Krause...republican theory of freedom as non-domination unable to trace the form of domination implicit in structure of thoughts and behaviours such as #racism or #patriarchy...”
“... which create the informal social inequalities that remain outside the reach of non-domination because of their often unintentional character”
“While the loss of liberty caused to #Dalits in a casteist society cannot be attributed to any single intentional act or agent it would be as preposterous to chalk it down to nature as it is to say that my body structure prevents me from flying”
“ The structural formulation of unfreedom argues that impersonal or unintentional constraints might still need to be justified as long as it is the product of human design if not simply human intent” #socialinequality
“...The argument is that these structures are designed and instituted by individuals and therefore the moral responsibility for the working life upon human shoulders”; inequalities are historical and socially constructed #notetoself
“...or if one were to use the language of intent the intent may not be to coerce any specific individual but to construct a system whose effect is to narrow the range of options available to those subject to its functioning”
About the United States Constitution 13th amendment phrase: involuntary servitude “like forced it is the word involuntary that creates a bridge between ideas of freedom on the one hand and the manner in which economic arrangements constrain options on the other“
Cites MacCallum “If one is concerned with social political and economic policies and with how these policies can remove or increase human misery it is quite irrelevant whether difficulties in the way of the policies are or aren’t due to arrangements made by human beings...
...The only question is whether the difficulties can be removed by human arrangements, and at what cost“
Cites Ben & Weinstein “A man who lack the physical means, wheather muscular strength or ropes, to climb a cliff need not be unfree but only unable to climb it, though one way of depriving a man of his freedom to climb it is to take away his rope”
The text of article 23 unfortunately does not clarify if its use market-oriented economic structure and economic arrangements as part of the natural order (nature of markets) or if they are to be considered a product of human design #MoralImperative #NoteToSelf
“… The Indian Constitution did not read economic structure as part of the background, natural environment which only condition the exercise of fundamental rights instead of compromising them...
... rather the founding philosophy of the Constitution understood economic arrangements as potential infringement upon freedom and consistent with labour-republicanism understood State power as one method of protecting freedom from the market“
Cites #Ambedkar “Political democracy rest on the premises:
(1) the individual is an end in himself
(2)to the individual has certain inalienable rights which must be guaranteed to him by the Constitution...
(1) the individual is an end in himself
(2)to the individual has certain inalienable rights which must be guaranteed to him by the Constitution...
...(3) individuals will not be required to relinquish any of his constitutional rights as a condition precedent to the receipt of a privilege
(4) The state shall not delegate powers to private persons to govern others”
(4) The state shall not delegate powers to private persons to govern others”
“ according to #Ambedkar the market economy based on private enterprise and pursuit of personal gain created a situation where private employers had the power to violate the liberty of the individual”
Cites #Ambedkar “ it is true that where the state refrains from intervention what remains is liberty. But this does not dispose of the matter. One more question remains to be answered. To whom and for whom is this liberty?”
“Obviously this liberty is liberty to landlords to increase the rents for capitalists to increase hours of work and reduce the rate of wages...
...For in an economic system employing armies of workers producing goods en masse...someone must make rules so that workers will work and the wheels of industry run on. If the state does not do it the private employer will....
... In other words what is called liberty from the control of the state is another name for the dictatorship of the private employer” #Ambedkar
#Ambedkar “how to protect the unemployed & employed from being cheated out of their fundamental rights to life liberty and pursuit of happiness. Useful remedy adopted by democratic countries is to limit the power of government to impose arbitrary restraint in political domain”
Summarising #Ambedkar on economic arrangements “ his insistence that arbitrary power need not be exercised intentionally but was simply a function of existing economic arrangements” and hence needs active acknowledgement by State in its #PublicPolicy #socialInequities #NoteToSelf
Via-a-vis #SupremeCourt judgements on #minimumwage “use of unequal economic power to compel individuals to give up their constitutional rights in return for basic material security was what #Ambedkar warned against & what constituent assembly wanted article 23 to guard against”
“...with the rapidly changing character of work and the rise of the sharing or platform economy where unequal relationship of power have taken on more scattered and distributed forms...”
“... the courts are likely to have many more opportunities in the near future to revisit ideas of force and freedom and as #Ambedkar observed, interrogate the relationship between #civilrights and the economic structure”
Tracing the transformative potential of the Indian Constitution which “requires a democratisation of what were considered private spaces (the home) private relation (marriage) and private functions (sex and procreation)” #NoteToSelf
#Privacy as a spatial-functional, relational-institutional, and decisional construct #TheTransformativeConstitution #NoteToSelf
Various Indian court judgements related to detention laws violate basic principles of fair judicial process in favour of “larger public interest” diluting the constitutional fabric of individual liberty, #fairTrial #NoteToSelf; poor articulations of “reasonable restrictions”
“ requirement of proximity and rigourous judicial review, the heart of civil rights jurisprudence flows from the requirement that restrictions must be reasonable“
Defending abuse of power as stray actions of few actors undermines the premise that the very design of laws must also meet close constitutional scrutiny, not only its implementation; abuse of #detention without #fairtrial laws #NoteToSelf
Wow! Justice Thipsay’s articulation of how to apply constitutional principles of liberty in instances of State overreach into individual ideologies on #socialjustice
Although a pre-constitution pre-independence #CivilLiberty tradition among Indian social movement is well demonstrated, the instances discussed appear weak, peripheral and led by charismatic leadership than a broad-based demand by people #NoteToSelf (p.284-287)
Many in the constituent assembly debates appear to be in favour of arguments for limiting civil liberties for safeguarding wider “public safety”; slippery slope if subjective assessment by executive without ensuring due process and justification #NoteToSelf
...leading to the Indian constitution being an exception in that it specifically provides for preventive detention rather than make it a rare exception; #Article22 #NoteToSelf
The constitutions preventive detention provisions originated to safeguard “#dueprocess“ and prevent state overreach into #civilliberties; however it has often been used for the contrary without examining the underlying constituent assembly debates where this provision originated
“In 2017 the #IndianSupremeCourt affirmed an important element of the Constitutional vision and #civilliberty on the point that the fundamental rights were not a gift of the state but inhered in the people who had given themselves the Constitution”
“Visualising rights as a gift that can be taken away at will is redolent of the culture of authority. Rejection of that view restores the original Constitutional ideal of the culture of justification (for rare exceptions that necessitate preventive detention)“
“our legal system is riddled with legislation that has nothing to do with public or national security but nonetheless incorporates elements of the state of exception. At the forefront are anti-beggary acts, a brutal colonial holdover now existing in 20 Indian states...”
“anti-beggary laws effectively criminalise #poverty and create status offenders; punished people not for what they have done but for who they are; criminalises individuals for having no visible means of subsistence economy and wandering/remaining in public place...”
“anti-beggary laws authorise detention for up to 1 year for crimes such as “begging” & endorses guilt by association; allowing courts to detain dependents of beggars; One thing to normalise state of exception in antiterrorism, quite another to endorse as method of social control”
“Justice Thipsay’s judgement’s transformative potential to dismantle some of the most suffocating features of India’s security-State legal apparatus as well as its social control legal apparatus and erect in its place judicial philosophy...”
“... that places personal liberty and freedom of speech and association at the heart of the constitutional order. But it is a lonely truth not yet accepted or validated but accumulated force of judicial opinions thereafter”
Selvi vs Karnataka as a transformative judgment striking down forced narco-analysis, lie detectors and brain mapping of “accused” as unconstitutional; previously these were possible within the framework of a fair trial! #NoteToSelf
Shelley vs Kramer, US #SupremeCourt “ too high a price may be paid even for the unhampered enforcement of the #criminallaw and that in its attainment other social objects of a free society should not be sacrificed”
“The relationship between the individual and the state is at its most unequal when an accused person is brought face-to-face with the machinery of a official power. Constitutional rights are actualised only when they’re applied meaningfully to such relationships”
“The case of Selvi reversed a decades-old logic: that a system of law instituted by a colonial regime with the express purpose of controlling a subject population could be applied without alterations to the relationship between a constitutional democracy and its citizens”
“It did so by placing the individual and individual rights at the heart of its interpretation of the guarantee against self-incrimination and making privacy the organising principle to determine the interplay between the constitution and the criminal process.”
“but our Constitution exists because the easy path is not always the right path, and the court exists because, unlike an individual accused, they have the institutional resilience to withstand popular opprobrium when they decide to forsake the easy path for the right path”
“#Ambedkar’s relief that the draft constitution had adopted the individual as its unit would end up as little more than a cruel joke if the individual has to leave behind her right at the entrance of the police station”
“it is moral orphans among us, despised by society & at mercy of the State, who far from being dispensable stand most in need of constitutional sanctuary. Until this percolates through rest of our criminal law, our Constitution transformative potential will remain unrealised”
In the authors words the book is an attempt to articulate a transformative understanding of the Constitution rooted in #liberty #equality and #fraternity. In different ways they are concerned with the question of #power
“Liberty guarantees individual freedom by constraining state power. #Equality authorises and sometimes mandates that state power be used to remedy historic and institutional disadvantage. And fraternity seeks to dismantle social hierarchies by equalising private regimes of power”
“The question that we must now urgently address is how the Constitution through the trinity of liberty equality and fraternity is supposed to constrain, shape and use this power in continued service of #democracy”
Cites Virginia Eubanks: “ when automated decision-making tools are not built to explicitly dismantle structural inequities, their speed and scale intensify them“
Proposes technological self-determination:”individuals have the right to engage with technological systems on their own terms the right to opt in or opt out of such systems without suffering for it & right not to be subjected to technological intervention w/out meaningful choice”
“Technological self-determination must form basis of how we understand relationship between technological systems and the constitutional trinity of liberty, equality, and fraternity. TSd must be at the heart of the transformation of constitutional order of the 21st century”
Hey @threadreaderapp pls unroll
