Abstract
The Directive Principles of State Policy elaborated in Part IV of the Constitution of India require the state to secure a social order for the promotion of welfare of the people by eliminating the inequalities that exist. The economic system is to be operated in such a way as not to result in the concentration of wealth and means of production to the common detriment and the ownership and control of community resources are to be distributed to best serve the common good. There is one point of view that asserts that Part IV of the Constitution is not justiciable and cannot be directly enforced and there is another contrary view which holds that Directive Principles are fundamental to governance and judges must use these principles as guiding lights while delivering judgements. Insurgent constitutionalism attempts to infuse life into the otherwise dead letter of the law by injecting a people-oriented ideology in Indian constitutional jurisprudence. The parameters and outlines of this ideology are to be found in the Directive Principles.
This argument developed by K.G. Kannabiran—senior advocate, philosopher and fierce human rights activist—in his book The Wages of Impunity: Power, Justice and Human Rights in India (Orient Longman) is taken forward in ‘Tools of Justice: Non Discrimination and the Indian Constitution’ by his daughter and scholar Kalpana Kannabiran. The central theme of her project is to show that Article 21 of the Constitution, which guarantees protection of life and liberty, is not applicable only to state custody and civil liberties. Life and liberty are inherently and profoundly interconnected with Article 15 and the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Describing liberty as ‘the Siamese twin of non discrimination’, the book explores the application of this interrelationship in the areas of disability rights, Dalit rights, adivasi rights, religious minority rights, women’s rights and sexuality minority rights.
Describing discrimination as the undermining of dignity, Kannabiran outlines the practices that are destructive of dignity such as segregation, seclusion, negative stereotyping, exclusion, chronic mistreatment and finally—the most severe of them all—collective violence. She identifies key constitutional concepts for the identification and elaboration of discrimination such as ‘hostile environment’, best elaborated in Vishakha’s case where it was held that the existence of an environment at the work place hostile to women constituted sexual harassment. In her book, she develops this argument by extending it to persons with disability operating in a society where physical and other forms of access (ramps, sign language interpreters, etc.) are missing, to tribal areas where the adivasis are hemmed in by a hostile forest bureaucracy and to situations such as those prevailing in the state of Gujarat after the 2002 massacre of minorities where Muslims are segregated and ghettoised.
Against the yardstick of equality and non discrimination, it emerges that in certain aspects of social life, India remains a barbaric and uncivilised country where discrimination is deep rooted and widespread with large scale incidents of violence dotting the jurisprudence landscape. Kannabiran may have found it difficult to decide whether to start with discrimination against persons with disability or caste discrimination or discrimination against women and sexual minorities. The decision to start with disability may have been on the throw of a dice. She begins by looking at the case law which is rather recent and not very comprehensive. She then looks at state policy and legislation and ends with ‘a radically new approach that springs from the question of ability’. In doing so, she moves from the current status of state charity and tolerance to infusing disability rights with dignity and a vibrant view of legal capacity.
The sections on caste examine the sociological and historical scholarship, the case law on reservation for Dalits in employment and education and the issue of untouchability. The battle between the Dalits and the dominant castes, so intense and persistent in Indian society, enters the courts with constitutional battles being fought over issues such as ‘merit’ and ‘efficiency’. Over the years a constitutional morality on reservation has developed, based on the recognition that without special measures, the process of inclusion would remain a distant dream. This section on untouchability has an interesting outline of S.R. Sankaran’s immense contribution to the struggle against untouchability. A senior government servant, he made 136 government orders in ‘an unparalleled demonstration of creative and insurgent administration’–all enacted to stamp out the vice of untouchability and to enforce Article 17 (the abolition of untouchability) of the Constitution. The Scheduled Castes hold their own in perhaps all but one crucial arena of power—the judiciary. Kannabiran points out that in 1989, of the 432 High Court judges, only six belonged to the scheduled castes and one to a scheduled tribe. The situation is not very different today.
The section relating to adivasis covers complex constitutional issues relating to adivasi homelands, their liberty and massive forced displacements. Despite the enactment of the Panchayats (extension to the Scheduled Areas) Act, 1996 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, neoliberal economic policies proved triumphant and crippled the implementation of these statutes. Corporate activity, particularly mining, in the tribal areas gives rise to a civil war with the security forces pitted against the adivasis causing untold misery due to suspension of public services, arbitrary arrests, torture, illegal detentions, disappearances and abductions. This provoked what is possibly the most remarkable decision of any Supreme Court or Constitutional Court in the democratic world—Nandini Sunder Vs State of Chhattisgarh—where the Supreme Court characterised the state as terrorist and castigated globalisation and its agents—the World Bank and the IMF.
Then there is the section on discrimination against religious minorities. It covers, inter alia, the Sachar Committee Report of 2006, showing discrimination and collective violence against Muslims and social, educational and economic backwardness among certain sections. It also deals with the 2010 decision of the High Court of Andhra Pradesh in T. Muralidhar Rao Vs. Government of Andhra Pradesh where the High Court struck down a statute providing for reservation for certain Muslim backward classes. Kannabiran characterised the action of the High Court as symptomatic of ‘conservative and deeply discriminatory majoritarian rhetoric’. Finally Kannabiran analyses the paralysis of the right to liberty in the context of communal violence and genocidal massacres.
The last part and probably the most comprehensive section is titled ‘Sex, Gender and the Denial of Freedom’. Starting with the history of social reform in India from the late nineteenth to the mid twentieth century, Kannabiran then proceeds to analyse the judgements of the High Courts of the States and the Supreme Court of India over a 60 years period. Later she focuses on the history of legislative measures taken to combat sexual assaults and the various court decisions that culminated in sexual assault being viewed as a derogation of the right to life and personal liberty. She places particular emphasis on sexual violence against women from Dalit, tribal and minority communities and the practiced guarantee of impunity to perpetrators of violence against women. In ending this section, the historic decision of the Delhi High Court in the Naz Foundation Case has a particular pride of place because it is this decision that brought discrimination against sexual minorities centre stage in India.
This is a superb, path-breaking study and a must for all college students, academics, activists and members of the legal profession.