The centrality of post-colonial Indian State
Writing on the nature of the modern Indian State, SudiptaKaviraj, a political scientist, states that an institution that was traditionally understood as limited to basic furniture of our society has  come to be transformed into a ‘central moral force’. Perhaps the expression “constitutional morality “in our judicial decision making is coming from there and in any event “morality” finds  a place in A 25 of the Constitution of India. He goes on to describe how exactly the state has acquired this central importance.
 
‘It is implicitly invoked in every demand for justice, equality, dignity, and assistance- because all such demands can be made only in its name; and it is the state’s responsibility to meet all these expectations.’1
 
State and Constitution
One must, however, distinguish between the State and the Constitution and understand that the State is a creature of the Constitution. Another thing to which I wish to point attention is that it has always amazed me that there is no definition of “government” in the constitution. This came
home to me when I was arguing the case of Government of NCTD versus Union of India in the Supreme Court of India. The Constitution does however describe States in Schedule 1 and “Union ‘ in article 1 when it says
 
“India that is Bharat shall be a Union of states”.
Note however that this definition is a territorial one in that it describes territorial units and does not actually use the word “State” in the manner mentioned above. What Article 1 does do is to explain that India is a Federation. The Supreme Court however In my opinion does not quite tell
us what is federalism in the Indian Context. It is sometimes described as quasi-federal, sometimes as federal state with a strong center and more recently we talk about “cooperative Federalism”. All these expressions have loose meaning in the context of a one party state that we have moved towards. Take a look at the map of India on social media – India is orange!
Hence we have a host of confusing expressions: “State” “Government” and “Union”; the only unambiguous expression being “ Constitution”. The question that we must ask is- Could the modern state be anything else but all-encompassing in nature?
 
The answer to this and other similar questions lies in the experiences of American Independence movement as compared to various independence movements in the global South. In the global south, independence struggles, especially in India, have come to acquire central importance as a matter of choice. Such movements across the global south have not only faced an external enemy in the form of a colonial power but rather, at the same time, they have also fought internal enemies, of much bigger proportions, in the form of extreme poverty, socio-economic inequality, hierarchies of Caste, Race, Gender and much more.
 
A state that actively takes up the task of eradicating internal inequalities has been of primary consideration for the constitution framers. In achieving this, the constitution has also been the tool with which we the People have fought these internal enemies. Writing on India’s
constitutional moment, several scholars have expressed a similar sentiment. Uday Mehta Writes:
 
‘When one considers, for example, the Directive Principles of the Constitution or the ‘strivings’ of the state, they include a fulsome engagement with matters of health, education, individual and communal safety, equality, and prosperity. This constitutionally enshrined vision of the future is what has often been seen as implying an activist and capacious state, responsible for creating conditions for the exercising of freedom’2
 
Origins of Transformative Constitutionalism
The origin of transformative constitutionalism is traced to post – apartheid South Africa. A former Chief Justice of South Africa traces the core of transformative constitutionalism to the preamble of the Interim Constitution of South Africa which reads:
 
“A historic bridge between the past of a deeply divided society
characterized by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-
existence and development opportunities for all South Africans, irrespective
of colour, race, class, belief or sex“.
 
While Transformative Constitutionalism, with regard to its meaning, continues to draw debates in the face of different experiences across the world, key elements that define or differentiate Transformative Constitutionalism are the central role of the State (Courts included) in
fulfilling the project of emancipation and constant development of the Constitutional ideals of Liberty, equality and fraternity. It is these principles on which the society must sustain itself and the state must play an active role in constituting a society based on those principles. In
India the principle proponent of this view in the judiciary has been justice Krishna Iyer, a judge who has had an abiding influence on my own work. Reflecting on the need to interpret the constitution as a transformative document, he remarked that
 
“The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labor, the hungry, hard-working half-slave, whose liberation
was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made — the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the
principled solution of social disabilities.3”
 
DrAmbedkar, emphasizing these principles remarked that:
‘We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.
 
What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life.’4
 
The Constitution has been interpreted as a radical document that seeks to reconstitute society, while being mindful that the old hierarchies cannot be wished away. The duty of ensuring that transition is placed on a state that truly imbibes the transformative character and pursues it
relentlessly.
 
Therefore, two key aspects of the term transformative constitutionalism emerge:
 
1. It envisages attainment of substantial equality by recognizing and eliminating all forms of discrimination as they may have existed or may develop in the future;
 
2. It calls for a realization of full human potential within positive social relationships – The use of the term ‘positive social relationships’ instead of limiting it to an individual’s interactions with the state is indicative of the pervasive nature of transformative constitutionalism in the private sphere as well.
 
Differentiating this understanding of Transformative Constitutionalism from Constitutionalism, Michaela Hailbronner invites us to think of what transformative constitutionalism is not. Citing US Constitutionalism as not transformative constitutionalism, he contends that
 
‘U.S. constitutionalism does not entrust the federal state with the task of bringing about a more just and equal society. Its conception of law is “reactive,” to borrow from MirjanDamaska, and its constitutionalism4
 
Last speech while handing over the Constitution drs
represents, in Somek’s useful terms, “Constitutionalism 1.0” with its emphasis on liberty’5
 
Therefore, US constitutional experience is often understood as different from the project of transformative constitutionalism as envisaged by the global south, in which states play an activist role. This is because of the highly divisive hierarchies and acute lack of resources persisting in
countries like India and South Africa that the constitution sought to outrun. They also prevented us from developing any notion of a nation in the first place, as Doctor Ambedkar contended, since the distinctions based on caste belied any existence of fraternity, and hence a nation.
India’s constitutional moment was said to be a shift away from old practices and hierarchies. More recently and over seventy years since the Constitution came into force, the full court of the Rajasthan High Court has resolved that advocates ought not to address Judges as “ My Lord”,
given the mandate of Article 146. The Court led by the Chief Justice Ravidra Bhatt has given us a classic example of what transformation from colonialism to Republicanism could mean, even if it be in language; language after all is the most powerful tool of transformation. As I said in my open letter to the Chief Justice of India-
 
“Language is more than a mere communication tool. It is an intuitive social, cultural and political indicator, which reflects prevailing attitudes and ethos of any society.”
 
5 Michaela Hailbronner, Transformative Constitutionalism: Not only in the global south, The American Journal of Comparative Law Volume 65, 2017, Pg 527-565:
 
6 Article 14- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth This was when the Attorney General referred to me as someone else’s wife. To be fair to him, he followed this with a correction and as Justice KrishanIyer once said “we must ‘bring up our judges” and I may add,
our male colleagues at the Bar.
 
Transformations happen in these small ways on a day to day basis when we refuse to let a small injustice happen
to us. A decolonialization of the legal profession and of our laws is yet to take place. Indeed this was my own motivation in some small way to question the very institution of Senior Counsel (the equivalent of Queens counsel) and my motivation for shedding the Senior gown on 15th August 2017, Independence day. Since that day I have not worn a Senior gown despite my peers urging and they tell me “you have succeeded in that case so take back your senior gown .. “I don’t know what success means. As far as I can see, that was my Rosa Parks moment – it came to me unasked for, refusing to wear the Senior Gown. You the students at NLSU have had your own transformative moment inviting me, with full knowledge of the fact that an FIR has been registered against Lawyers Collective Anand Grover and me and our premises have been “raided” – a word that finds no place in the CrPC. I cannot resist telling you that on the day of the “raid”, Anand Grover was in court Number 4 in the Supreme Court of India arguing his partheard matter. He told the CBI officers ” I have never let down a client and asked for an adjournment and I will not do it today “ It was a defining and a testing moment for us to be out there despite knowing that we were being targeted for being human rights defenders.
This loose usage of language poses a threat to our liberties and transformative constitutionalism.
 
Towards Substantive Freedom
If the state assumes an active role in ensuring liberty, equality, freedom and other ideals enshrined, the next question that arises naturally is with regard to the content of these ideals. What are the limits to which the state should pursue these ideals and enable people to achieve these ideals? An understanding of transformative constitutionalism demands that the state actively pursue these goals and remove all barriers to enjoyment of such ideals. It is, perhaps, in this light that Amartya Sen talked about “Development as freedom” and his Capability approach.
Sen, in his book, ‘Development as Freedom’ alludes to the notion of substantive equality when he talks about the tyranny of unfreedoms which restricts growth and development of an individual. These unfreedoms that he refers to include: systematic social depravation, neglect of public facilities, intolerance, or over activity of repressive states. He argues that the denial of these substantial freedoms are sometimes related to economic poverty, which robs people of the freedom to satisfy or to be adequately clothed, obtain remedies for treatable illnesses, etc.
Continuing the same argument, Martha Nussbum and Sen conceptualize the capabilities approach better addressed the idea of well – being. When evaluating well-being, Nussbum and Sen argue, the most important thing is to consider what people are actually able to be and do. The commodities or wealth people have or their mental reactions (utility) are an inappropriate focus because they provide only limited or indirect information about how well a life is going.
 
Transformative Constitutionalism and the Judiciary
The jurisprudence around the constitutional ideals of equality, liberty, and fraternity began developing after the emergency. Recovering from the defeat of the Congress Government in the post-emergency period, the Supreme Court, in search of legitimacy, articulated the jurisprudence of Public Interest Litigation.
 
Justice Bhagwati declared that the adversarial system of the commonwealth was unsuited to Indian conditions, it was based on “selfi dentification of injury and self-selection of remedy”. Given the vast illiteracy of the people, this would not ensure access to justice I have elsewhere pointed out that it is no accident that one of the pioneers of the PIL as articulated in S P Gupta, Justice Bhagwati was also one of the authors of the ADM Jabalbur judgment. This limitation which is at the origin of PIL must be remembered as a major limitation on PIL’s itself. More recently it is very clear that PIL can be an instrument of oppression perhaps more deadly than any other since it is so heavily dependent on the “discretion” of judges.
 
And that brings me to the point out that rule of ‘discretion’ is contrary to the rule of law in that it introduces the rule of predominantly men and occasionally women. I am aware that no law can be implemented; no executive authority can function without “discretion” as a legal concept
in decision making. But India lacks a theory of
 
“abuse of process” making it possible for decision to degenerate to favoritism; face law and not case law and targeting of dissenters, under cover of law. This must be remedied forthwith. Power cannot be used for a
colleterial purpose in the name of “discretion”. India lacks a theory of responsibility for wrongdoing. India lacks command responsibility for wrongdoing . What has in fair measure, is impurity for decision makers.
 
 
No economic and social rights without civil and political rights
We at the lawyers Collective too thought when we argued the Olga Tellis case and the Bombay Hawkers Union cases that economic rights is what we need to work on – it was a magic wand that would remove poverty. I have since then realized that my generation took its civil and political
liberties for granted. We were Midnight’s Children and we inherited civil and political liberties. Life has come full-circle. Freedom and independence can no longer be taken for granted, leaving us free to work on economic rights. For many including me and Anand Grover, for
cartoonists and poets, students, dalits and farmers, for the accused in the BhimaKoregao case, the fight for liberty has just begun all over again.
 
Battling to maintain its legitimacy in the eyes of the public, in the years following the emergency, the judiciary has now reached an ambivalent space, still opening the doors to PIL when it wishes to, and closing then tight when it wishes to.
 
It is also not surprising that it was during this phase that the Affirmative Action policies came into picture through the Mandal Commission. Based on the idea of achieving Substantive equality, and subject to wide ranging debates, reservations in educational institutes, and now in
Promotions also, as approved by the Supreme Court in BK Pavitra II have been single handedly responsible for ensuring whatever little diversity in different walks of life we see today. Highlighting this importance of reservations, Justice Chandrachud in BK Pavitra remarked that:
 
“There is substantial evidence that the members of the Constituent Assembly recognized that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.”
 
LGBTQI movement and the demand for Privacy
In recent times, the jurisprudence around transformative constitutionalism has developed strongly, especially in relation to the rights of the LGBTQI communities, through a series of judgments. In what has to be considered one of the most celebrated judgments that has been delivered by the Supreme Court in recent times, in Navtej Johar v. Union of India, the court held that ‘Transformative Constitutionalism’ is considered to be one of the objectives of adopting a constitution itself.
 
The purpose of it is to have a Constitution which guides the nation of transforming itself from a medieval and hierarchical society to an egalitarian democracy to embrace the ideals enshrined in the Preamble to the Constitution. It was held that as a constitutional court whose job is to protect its people from humiliation and discrimination, it cannot provide a static interpretation to the rights of liberty and equality and remain a mute spectator to the struggle for the realization and attainment of rights. Highlighting what lays at the core of transformative constitutionalism, Justice Dipak Misra remarks:
 
“The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of “liberty” and “equality” and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature. The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights.”
 
I believe that every generation has the right to decide for themselves what the Constitution means for them, to interpret the Constitution after their own aspirations. Let us not however forget that the battle to decriminalize Section 377 was started 20 years before the Navtej’scase, by the Naz Foundation, supported by the Lawyers Collective and found its own in a judgment of the Delhi HC in Naz Foundation, reversed in Koushal most shamefully. Navtejis a reaffirmation of Naz. The judgment of the Supreme Court in NavtejJoharwas preceded by the judgment in Justice K.S. Puttuswamyv. Union of India. This judgment was instrumental in holding the right of privacy as a fundamental right under Part – III of the Constitution. While the specific contours of privacy
yet remain to be tested in specific factual scenarios, the judgment has set the ball rolling to initiate discourse rights that flow from the right to privacy such as the right to be forgotten, which will have significant impact on the functioning of the criminal justice system.
 
The Fight for Gender Justice
While the slew of judgments in Puttuswamy, Nalsar, ShafinJahan and NavtejJohar have reflected the progressive elements in the judiciary, the larger picture has no doubt been rather grim. The relief provided has been limited, and courts have largely shied away from taking any firm stand against the government of the day. Nothing epitomizes this limitation of the judiciary more than its
judgments in several cases relating to rights of women, starting from 1950’s to the recent cases of Sabrimalaand Triple Talak. Though the latter two do have a progressive impact, what is being suggested is that the reasoning could be more rigorous and transformative. The judgments of the Supreme Court starting from the case of Narasu Appuhave continuously ignored the question of gender equality on the pretext that personal law is not law within the meaning of Article 13 of the Constitution. The ghost of NarsuAppustalks the SC to this day and mainly on the rights of women. This stand of the court was later challenged in the cases of Mary Roy, Gita Hariharan, Shah Bano, Goolrookh, Sabrimala, and the Triple Talakbut the court dodged the question. Religion remains the last frontier that woman have to cross to attain equality.
 
It was only in Sabrimalathat the court has sought to address the question in the affirmative, exorcising the ghost of NarasuApputo a certain extent. In a concurring judgment, Justice D Y Chandrachud held that preventing women from entering the temple amounted to another
form of untouchability. The majority ignored the argument. I have been much criticized for categorizing menstrual taboos as “untouchability”, on the ground that I was appropriating the struggles of Dalits! My question was: “Why not?” I acknowledge that Article 17 was inserted in the context of untouchability of the scheduled castes, but there are always new and emerging forms of untouchability. I have witnessed this form of untouchability in my own family and memoirs of childhood leave a lasting impact on us in adulthood.
 
Goolrookh presents a frightening picture. The question revolves around whether a woman acquires the religion of husband on marriage, as held by the Gujarat High Court. The SC is yet to answer the question. A rather shocking proposition that a woman acquires the religion of her
husband on marriage has been upheld by the Gujarat High Court. Thus a woman has the religion of her father on birth and of her husband on marriage!
 
Also, as was shown in the recent Triple Talakcase, the Supreme Court came up with divided opinions as to why the practice of Triple Talak must be stopped. While it was held by two judges that the practice was manifestly arbitrary and unconstitutional, other Judges said it was unislamic
None of the judges said it was violation of Article 15 or 21. The court relied on the doctrine of “essential practices,” continuing the legitimacy of laws which are at the source of this discrimination. Thus, whenever the question of equal rights for women has come forward, the approach of the courts has been disappointing.
 
Interpersonal relationships
The ShafinJahancase is an illustration of transforming interpersonal relationships. Arguments in this case however ranged from questioning if Hadiya, a 24 year old Hindu woman had been brainwashed, programmed, or indoctrinated to convert to Islam and marry a Muslim man. The work of the RSS was on view in full force in protesting the marriage of a Hindu woman to a Muslim man. However, Hadiya stood in the Supreme Court, before the then Chief Justice, DipakMisra and Justices Chandrachud and Khanwilkar when the court directed that they
want to interact with her. Upon being questioned,
 
“Her crystal clear voice rang through the court room, “I want my freedom.” Did the court have any
choice at that point? No. when asked if she wanted to continue her education, she said “I want my faith and my education”. Then when it was clear that she would be sent to the college hostel she said, “I want to be
able to talk to my husband when I need to discuss anything, I want his companionship”
 
This fight for gender justice, perhaps is the story of failure of transformative constitutionalism in India.
 
A Problem from Hell
Sexual harassment at the workplace remains, “a problem from Hell” especially for women in the judicial system and now for human rights defenders as well, as they are just “collateral damage”. Once again, the impunity from legal process that judges enjoy has made it impossible to bring judges who sexually harass, to justice. I must have the singular distinction in this country of having represented woman interns, women judges, and women employees against the judges who they allegedly sexually harassed them. In one such case of a sitting High Court Judge
was impeached unsuccessfully, I had occasion to cross examine three sitting judges of the High Court in that case. As a consequence, I lost respect for the system as a whole. One of the Judges I cross examined, for this role in transferring the woman judge following the harassment,
and whose order to transfer was held to be illegal and irregular went on to become the Chief Justice of a High Court and was seriously being considered for being appointed to the Supreme Court. We now acknowledge that the “Me Too” movement has yielded no concrete results
for women in India. The Problem from Hell, a title which Samantha Power used in relation to the Holocaust, continues to plague us.
 
Tushar Gandhi takes the issue of Mob Lynching to court.
The facts and statistics are too well known to repeat here in the limited time I have on hand All I wish to say it that mob lynching is not a “ law and order “ issue but an issue of targeting on communal grounds and is thus a Constitutional and Federal issue, for which the Central
government must take responsibility.
 
Vinod Jose, executive editor of The Caravan, at a recent global conference on media freedom organized by governments of UK and Canada, remarked on these incidents:
 
“Such acts of violence were not spontaneous, but came out of a hatred and intolerance of religious minorities systematically cultivated over a long period of time.”
 
Mr. Vinod Jose was intimidated and discredited for voicing his dissent against the current regime.
 
The Attack on Students
Last five years have also witnessed a significant attack on students from different universities. Some of the biggest victims of these attacks have been RohitVemula, Najeeb, Kanhaiya Kumar, Umar Khalid, and Payal – who stood at the intersection of cast and gender and more. The
emergence of a new curse word “anti-national “ is intriguing. I have elsewhere pointed out in the context of the attack on Kanhiaya Kumar that there is no such crime in the Indian Penal Code that there is no such crime as “urban naxals’ in the context of the BhimaKoregaon
accused in the Indian Penal code, and yet more and more of us are being described as “urban naxals” and “anti-nationals”.
 
The Dilution of SC/ST Act
The recent judgment of the Supreme Court in the case of Subhash Mahajan was criticized heavily for diluting the law in favour of the SC and ST community. What was most frightening about the judgment was the fact that the Court based its judgment on the assumption that the SC ST community were “misusing” the Act – in other words, lying about their oppression .
We are all, each of us, women, SC ST, Students, minorities, and finally human rights defenders lying before the law! Who then speaks for the truth?
 
The Attack on Human Rights Defenders, the legal profession, front line defenders
In this long series of attacks, the recent targets have been the human rights defenders – lawyers who have sought to protect the values of constitution. Imagine what would happen if there were no human rights lawyers in the Country. Fortunately there are many. But an attack on lawyers is really an attack on the right to legal defense. When we talk of the independence of the judiciary we must understand that it includes the independence of the legal profession. When the judiciary sanctions attack on the legal progression , it is basically feeding upon itself . At the receiving end of this attack, among others, has been Lawyers Collective, Me, Indira Jaising, and Mr. Grover who have been victimized for taking up sensitive cases and speaking up against influential figures. Before them have come lawyers like Suredra Gadling, Sudha Bharadwaj, and  Teesta Setalvad for her defence of the victims of 2002 Gujrat. CBI raids have been ordered against the Lawyers Collective and its officer bearers on false allegations of “undermining democracy” by using FCRA funds. The way these events have transpired leave no doubts about the political
motivations behind this targeting. While defending the then Police Commissioner of West Bengal I pointed out in Court , “There is one way to get immunity form prosecution in this country, join the ruling establishment”. Do I need to say more?
 
Conclusion
Life has come full circle for me. As I said I am one of midnight’s children, I took liberty, freedom and independence for granted. I inherited it. We at the Lawyers Collective thought the battle was only for economic justice and worked in that direction. Today, I realize, my freedom was an illusion. It was foolish to thing that our rights could be guaranteed. Poverty cannot be eradicated by surrendering the right to free speech, is the devils bargain. Free speech is a necessary pre-condition for the liberation from “undeserved want.” I have lived too long perhaps. I have seen the court as a liberator. I have also seen the Courts as an oppressor. Students of Constitutional law must know that in any Petition filed under Article 32, a  fundamental right must be stated to have been violated. There is no such mention in the Petition against us an indeed there can be none. What is more, we have been accused of undermining democracy. The petition states
 
“It is submitted that the activities of respondent no 1 while being the Government servant clearly amounted to, directly or indirectly, affect or influence electoral politics, decision making process by public servants/
bureaucrats, interference with administration of justice through lobbying and media advocacy….”7
 
I did not know whether to laugh or cry when I read this. We, Lawyers Collective, have influenced electoral politics and interfered with the administration of justice? No! If we did try as alleged, indeed we must have failed miserably, as the world can now see. Transformative Constitution for us at the Lawyers Collective now means personal liberty. The right to free speech is now an endangered species of rights.
 
On behalf of the Lawyers Collective, I thank you for doing us this honor of inviting to deliver an inaugural address today on Transformative Constitutionalism, despite knowing that the CBI has registered a case against us. Life has changed. I no longer travel alone, I am surrounded by lawyers who volunteer to travel with me. That is my success and my contribution to the legal profession. Jai Hind, long live freedom In appreciation of Professor SarasuEstha Thomas, Head Center for Women and Law NLS and to the students she monitors everyday each day.
 
Indira Jaising,
Secretary, Lawyers Collective
 
1 SudiptaKaviraj, On the enchantment of State: Indian Thought on the Role of the State in the
Narrative of the Constitution
2 Uday S. Mehta, Constitutionalism, The Oxford Companion to Politics in India 2010, Pg 15-27
3 AkhilBharatiyaSoshitKaramchariSangh (Railway) v. Union of India, (1981) 1 SCC 246 : 1981 SCC (L&S) 50 at page264
 
 

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All this for my own money. Photo credit: Indian Express
 

While much has been written and said about the demonetisation move by the government, the question of its legality has received scant attention. The issue however is not the desirability or the economic viability of the decision and the undoubted public and national interest it serves. The goal of eliminating black money from circulation is undoubtedly in public interest. While I unambiguously support the policy of removing black—untaxed—money from the hands of those who have it, I question the legality of the manner in which it has been done.

To begin with, let us examine what is the status of the currency we hold in our hands. Section 26 of the Reserve bank of India Act 1934 (“RBI Act”) states as follows:
 

(1) Subject to the provisions of sub-section (2), every bank note shall be legal tender at any place in 4[India] in payment or on account for the amount expressed therein, and shall be guaranteed by the 5[Central Government].

 

This means that the money you and I hold in hand or in the bank is a debt guaranteed by the government to us. Currency thus represents a ‘public debt’ owed by the government to the holders of the bank notes, you and me.The notification issued by the Central Government on 8 November 2016 has been purportedly issued under Section 26(2) of the RBI Act.

Section 26(2) reads as under:

[Government] may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender 7 [save at such office or agency of the Bank and to such extent as may be specified in the notification].
 

The first legal question which arises is what is the meaning to be ascribed to the term “any series” in the above sub section. ‘Series’ in plain language can only refer to the series number on the denomination of a bank note. Going by this meaning, the government under this power can only scrap the legal tender of a series of a bank note of any denomination.
 

Traders association at Delhi’s Azadpur Mandi protest scrapping of Rs 500 and Rs 1,000 notes by the central government, on November 17, 2016. Photo by Sanchit Khanna/Hindustan Times
 

If the Legislature had intended that the government was to be invested with the power to withdraw the legal status of all bank notes of a particular denomination, as has been done in this case, the use of the words “any series” would be entirely superfluous, and redundant. Hence I conclude that Section 26(2) was never intended to be used as measure of dealing with the withdrawal of black money form the economy, nor was it meant to withdraw legal tender from all bank notes of a particular denomination.

That may have been the reason why previous attempts at demonetisation have been undertaken by the Ordinance route, followed by a Legislation. Demonetisation of 500 and 1,000 rupee notes by an executive fiat appears to a first of its kind procedure and raises fundamental questions on the authority and jurisdiction of the Executive to do what the Legislature has not permitted.

The matter can be looked at from another angle. Article 300A states that “No person can be deprived of his property except by authority of law.” Thus a person cannot be deprived of his/her moveable and immoveable property except with the authority of law.

The Notification dated 8 November 2016 thus appears to be entirely outside the law laid down by the Supreme Court. It is completely without authority of any law.

Demonetisation amounts to extinguishment of the public debt owed by the government to the holder of the demonetised note. A currency note is movable property in the hands of the holder. The Supreme Court has held in a series of judgements that deprivation of property by State jurisprudentially speaking could have three dimensions (a) a ‘taking’ of property by the government as in the case of land acquisition, (b) it could be in the form of an ‘extinguishment’ of right in the property as happened during land reforms where the tiller became the owner, (c) in certain situations even modification of property rights could amount to deprivation of property.
 

 

Interestingly the Supreme Court in Jayantilal Shah Vs RBI AIR 1997 SC 370, while upholding the validity of the High Denomination Bank Notes (Demonetisation) Act, 1978, held that demonetisation results in extinguishment of a public debt which amounts to deprivation of property and therefore could be done only by law.

The Notification dated 8 November 2016 thus appears to be entirely outside the law laid down by the Supreme Court. It is completely without authority of any law.

Further, the restrictions imposed by the Notification for withdrawal of legal currency are again completely without authority of law. Section 26(2) of the RBI Act by any stretch of imagination does not permit the Executive to restrict the rights of citizens to withdraw their own tax paid money from banks. The restrictions imposed by the Notification on a person’s right to withdraw from the bank are therefore seemingly without any authority of law.

This is precisely why in 1978, an Ordinance followed by a law was enacted. Why this was not done in this case is not at all clear. Parliament was not in session and this was a classic case where an Ordinance would be justified. The element of surprise could be maintained even by an Ordinance, which would have the force of law. But this was not done perhaps for the reason that the Ordinance would have to be replaced by a law and that would require debate in Parliament and a vote on the law.

 

But if the measure was in national interest, what explains the reluctance of the government to take the issue to the Cabinet and to the President for an Ordnance? Why the desire to avoid a debate in Parliament? Or was it a case of bad legal advice? The answer to these questions my friends, at this stage, is blowing in the wind.

What explains the reluctance of the government to take the issue to the Cabinet and to the President for an Ordinance? Why the desire to avoid a debate in Parliament? Or was it a case of bad legal advice?

While we all learn to tighten our belts and live within our withdrawal limits, Janardhan Reddys of the world have by their ostentatious display of wealth raised eyebrows on the seriousness of the Government to crack on members of the ruling establishment, friends and allies.
 

While I have argued that the demonetisation of 8 November 2016 is without authority of law from a legal stand point, it is for economists to say whether the measure will or will not achieve its desired result.

I once again make it clear that the goal of withdrawing black money from the market is something that I wholeheartedly support, but that is not the point. It must be done under authority of law. In our country today, it is the ‘rule of law’ which is an endangered species, and that worries me.

Indira Jaising is a Senior Supreme Court advocate and former Additional Solicitor General of India. She tweets at @IJaising

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In order to arrive at some conclusion on the question whether there has been an- assault on the Constitution by the pro-ponents of the Hindutva ideology who head the ruling combine at the Centre, it is necessary to look at both the text of the Constitution as well as the practice of the ruling parties.

While it is arguable that the text of the Constitution is by itself liberal, informed by the post–Second World War human rights consciousness, liberal and secular, the working of a Constitution depends on the conventions built up around it. These conventions in turn depend upon the manner in which ruling parties operate the Constitution. On them rests the heavy responsibility of operationalising the democratic ethos of the Constitution.

In the ultimate analysis, however, the Constitution is what the judges say it is. However, the journey between building conventions and having the actions of ruling parties tested in a court is a long one, and often courts, too, have a tendency to endorse existing practices,  which end up being the practice of the ruling parties.

It is no secret that one of the biggest challenges facing the Indian body politic today is the challenge of communalism. The challenge is to the secular credentials of the Constitution. It is also no secret that the challenge comes from the ruling BJP combine which has a self–professed Hindutva agenda.

The devastating consequences of this agenda have only recently been witnessed in Gujarat where the BJP consciously subverted the Constitution in pursuit of its agenda, leaving thousands of the Muslim community dead or devastated, in what was nothing short of genocide. The conscious spreading of communal propaganda, the equally conscious incitement of religious sentiments were all unconstitutional. The guarantee of maintaining communal harmony is at the heart of a secular Constitution. Multiculturalism, respect for all cultures equally and the right freely to practice religion, without fear of being put to death, must surely form the basis of any civilised constitution.

In this brief reflection, I would like to document my impression of what happened in the recent hearing in the Supreme Court when a bench of 13 judges of the apex court was hearing a petition relating to the interpretation of Article 30 of the Constitution of India.

The question arose on a reference by a smaller bench to a larger bench on the question whether minorities had the right to give preference in admission to students of their own community even though that institution was getting state aid. There were several other issues that arose: namely, the extent of permissible state regulation of minority institutions, including the power of regulating appointments of teachers etc.

But there was no serious debate on those issues. What was seriously at issue was the power to admit students of the community despite receiving state aid. It was, therefore, essentially a case about the rights of minorities. It was crucial therefore for the court to come to some understanding of the position of minorities under the Indian Constitution.

Far from an appreciation of the Constitutional position of minorities, what one witnessed in court was a reversal of the debate, namely the rights of majorities! By an amazing side wind, the court permitted an issue to be added, namely, do the “non-minority” communities have a right to establish educational institutions in the same way as minority communities? From that moment on, the dice was loaded against the minorities and the solicitor general of India argued with great gusto that the minorities had no special rights and that the rights of “majorities” were as important as those of “minorities”.

Sounds familiar? Reports appearing in the press indicated that the solicitor general was taking his instructions for the minister for human resources, Murli Manohar Joshi. Since we do not yet have a Freedom of Information Act, there is no way of confirming the reports. Whatever be the ethics of such instructions, the fact remains that that is the official government position.

So where does that leave us? Does the Indian Constitution make no distinction between “minorities” and “majorities”? Are we all so equal before the law that we lose our cultural identity, our religion and our political vulnerability? Is there an obligation on us all to achieve a sameness of thought, belief and practice, a sameness imposed by the powers that be?

Let us look a little closely at the provisions of the Constitution. Articles 29 to 30 of the Constitution fall under the general heading of ‘Cultural and Educational Rights.’ Article 29 begins with the words, “protection of interests of minorities.”
Article 29: Protection of interests of minorities — (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.

Article 30 reads as follows.
Article 30: Right of minorities to establish and administer educational institutions — (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administrated by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
There is no other reference to minorities in the Constitution.

It is not my intention here to expound on the meaning of these Articles but rather to point out that there are specific provisions in the Constitution dealing with minorities. There are no such provisions dealing with “majorities.” While minorities are considered as a group, majorities are not and individuals belonging to majority religious communities must work out their rights as individuals, not as groups seeking protection against “minority” groups.

One would imagine that this would make political and constitutional sense. And yet one saw a playing out in court of the Hindutva argument that the “majority” is under siege and needs protection against the “minorities.” Of course, the argument was dressed in the constitutional rhetoric of “equality”. But by now we have all learnt to decipher the political agenda behind any constitutional argument. The Constitution is after all a political document as much as a legal one and it is only proper that arguments are appreciated in their political context. What is not acceptable however is for that politics to be hypocritically concealed as constitutional logic.

For the survival of minorities in this country, it is essential that we understand the distinction of rights conferred on groups and those conferred on individuals. Group rights are conferred on vulnerable sections of society and can be asserted by and on behalf of groups. Benefits and protections are conferred on groups in order to preserve their identity as groups. For a government to argue that our constitutional goal is to achieve equality and “national integration” at the cost of effacing the identity of religious minorities is not only political rubbish but makes no constitutional sense.

Groups by definition exclude those that do not belong to the group. To argue therefore that they are being pampered by being given certain benefits is begging the question. Minorities are given special rights to achieve an equality which is otherwise denied to them. They stand on the same footing as do Scheduled Castes and Scheduled Tribes under the Constitution. How absurd it would be to argue that an upper caste person is being denied a job which is reserved for a Scheduled Caste person.

That is the way the Constitution meant it to be. Minorities, Scheduled Castes, women and children stand on the same footing. They are all beneficiaries of group rights, all entitled to affirmative action by the State to achieve substantive equality benefits to which “majorities”, whatever that term means in constitutional terms, are not entitled.

What is at stake in the case pending decision in the Supreme Court is not the number of seats the minorities are entitled to, or the extent of aid to which they are entitled, but an understanding of the position of minorities in the Indian Constitution. It is not my privilege here to argue whether minorities should be permitted to admit students of their own community in preference to others; that is for the court to decide. Rather, my concern is with the manner and method of interpreting a constitutional document in its historical and political context. If the court says that there is no difference between “minorities” and “majorities”, it will indeed be endorsing a specific political agenda, one that is ahistorical and makes for bad politics.
None of us have yet forgotten the Prime Minister’s famous Goa speech: “We will not tolerate…” Exactly what did he mean by “We”? The inspiring opening words of the Indian Constitution, “We the People of India…” Or, “We, the Hindutvawalas…?” That is the question.                  

(The writer is a senior lawyer in the Supreme Court).

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Rights of ‘majorities’?

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