Laws that make us human
aharashtra’s new social boycott law is an important step that must be applauded. It should also inspire work on a comprehensive anti-discrimination law on the lines of the Civil Rights enactments in the U.S. and U.K.
Early this month, the Maharashtra State Assembly enacted the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016. As the title suggests, the purpose of this law is to prevent and punish the continuing community-driven practice of social boycotts. The Act provides 15 examples of “social boycott”, which include obstructing individuals from observing religious practices or customs, severing social or commercial ties, causing intra-community “discrimination”, expulsion from the community, and so on. Persons who directly engage in social boycott, instigate others to do so, or participate in the deliberations of any meeting organised with the purpose of imposing a boycott may be penalised under the law.
The focus of the Act is clear: it is directed against caste panchayats which often function as community-based parallel forums of justice, and whose diktats are invariably directed against recalcitrant individuals who have been deemed to transgress the bounds of caste or community morality. Interestingly, therefore, the Act specifically penalises causing discrimination among the members of a community on the basis of “morality, social acceptance, political inclination, [or] sexuality.”
First Act and its fall
Maharashtra Chief Minister Devendra Fadnavis has correctly called the passage of the Act “historic”. Indeed, the Maharashtra law represents another chapter in a long-standing battle to secure individual freedom from the suffocating grasp of ascriptive communities, whether based on caste or religion. For instance, soon after Independence, in 1949, the State of Bombay passed a law called the Bombay Prevention of Excommunication Act, which outlawed the practice of excommunication within religious communities. The constitutionality of this Act was challenged by the “Dai”, or head, of the Dawoodi Bohra community, who argued that by curtailing his powers of excommunication, the law interfered with his religious freedom.
Maharashtra Chief Minister Devendra Fadnavis has correctly called the passage of the Act “historic”. Indeed, the Maharashtra law represents another chapter in a long-standing battle to secure individual freedom from the suffocating grasp of ascriptive communities, whether based on caste or religion. For instance, soon after Independence, in 1949, the State of Bombay passed a law called the Bombay Prevention of Excommunication Act, which outlawed the practice of excommunication within religious communities. The constitutionality of this Act was challenged by the “Dai”, or head, of the Dawoodi Bohra community, who argued that by curtailing his powers of excommunication, the law interfered with his religious freedom.
In 1962, a divided Supreme Court struck down the Act. The judges in the majority held that the practice of excommunication was an essential tool for maintaining community discipline and cohesiveness, and consequently, was protected by Article 26(b) of the Constitution, which guaranteed to all religious denominations the right to manage their own affairs in matters of religion.
However, in a powerful dissenting opinion, Chief Justice B.P. Sinha observed that, on the contrary, the Excommunication Act fulfilled the constitutional mandate by seeking to guarantee “individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief… it is also aimed at ensuring human dignity”. Specifically linking the prohibition of excommunication with the constitutional directive for the abolition of untouchability (under Article 17 of the Constitution), he held that the purpose of the Act was to outlaw such practices of outcasting and social ostracism, which deprived the individual “of his human dignity and of his right to follow the dictates of his own conscience”.
The correctness of the majority opinion in the Dawoodi Bohra case has been questioned, and a petition to reconsider it has been pending in the Supreme Court since 1986. As the difference of opinion among the judges reveals, however, the issue is a fraught one. Undeniably, the Constitution guarantees religious freedom to communities, and also guarantees the freedom of association. At the same time, however, the Constitution also recognises that punitive community action can severely harm individual freedom, dignity, and access to basic public goods. For this reason, it curtails the power of groups in various ways. Apart from the prohibition of untouchability, the Constitution guarantees non-discriminatory access to “shops, public restaurants, hotels, and places of public entertainment” (Article 15(2)). In legal language, this is known as the “horizontal application of rights”: that is, the Constitution grants individuals rights not merely against the State, but also against other individuals (and groups).
Long struggle
Maharashtra’s social boycott law is best understood as one front in a long struggle to effectuate the Constitution’s guarantee against social exclusion, as expressed in Articles 15(2) and 17. The history of this struggle did not start with the Bombay Excommunication Act. It did not even start with the Constitution. As early as the mid-19th century, intra-community battles over access to public goods under the colonial state had begun. The historian Anupama Rao records an instance from 1856, where the Bombay government denied admission to a Christian Mahar convert into a public school on the ground that caste Hindus did not wish to “associate” with a Mahar student. After sustained protests lasting a few decades, towards the end of the 19th century, Dalit students were allowed to attend public schools, but were directed to sit separately in a verandah outside the classroom. They were also barred from accessing the common water supply.
Maharashtra’s social boycott law is best understood as one front in a long struggle to effectuate the Constitution’s guarantee against social exclusion, as expressed in Articles 15(2) and 17. The history of this struggle did not start with the Bombay Excommunication Act. It did not even start with the Constitution. As early as the mid-19th century, intra-community battles over access to public goods under the colonial state had begun. The historian Anupama Rao records an instance from 1856, where the Bombay government denied admission to a Christian Mahar convert into a public school on the ground that caste Hindus did not wish to “associate” with a Mahar student. After sustained protests lasting a few decades, towards the end of the 19th century, Dalit students were allowed to attend public schools, but were directed to sit separately in a verandah outside the classroom. They were also barred from accessing the common water supply.
The struggle intensified through the course of the early decades of the 20th century and reached its climax in the late 1920s, with B.R. Ambedkar’s famous Mahad satyagraha directed towards opening up access to community water tanks that had been barred to Dalits. Simultaneously, he also launched a movement for entry into public temples, basing his claims on the right to an equal standing within the community. As he famously argued, “the issue is not entry, but equality.”
It was at the same time that Ambedkar began to conceptualise legal solutions to the problem of community oppression. In his submissions to the Minorities Committee of the Round Table Conference, he identified social boycott as “the most formidable weapon in the hands of the orthodox classes with which they beat down any attempt on the part of the Depressed Classes to undertake any activity if it happens to be unpalatable to them”. He quoted the Starte Committee Report of 1928, which had observed that “[the social] boycott is often planned on such an extensive scale as to include the prevention of the Depressed Classes from using the commonly used paths and the stoppage of sale of the necessaries of life by the village Bania… cases have been by no means rare where a stringent boycott has been proclaimed simply because a Depressed Class man has put on the sacred thread, has bought a piece of land, has put on good clothes or ornaments, or has carried a marriage procession with the bridegroom on the horse through the public street.” Accordingly, Ambedkar proposed an anti-boycott law which would specifically prohibit the practice of social boycotts. Although the colonial government did not take him up on this, a few of Ambedkar’s proposals found their way into the post-Independence Protection of Civil Rights Act of 1955.
Threads of exclusion
The Maharashtra social boycott law, therefore, is an important step in the long-standing struggle for social inclusion. It is, however, only one step. As Ambedkar recognised, exclusion occurs along multiple axes: through boycott, through stigmatisation, and through segregation (the case of the school verandah).
The Maharashtra social boycott law, therefore, is an important step in the long-standing struggle for social inclusion. It is, however, only one step. As Ambedkar recognised, exclusion occurs along multiple axes: through boycott, through stigmatisation, and through segregation (the case of the school verandah).
In The Untouchables, he wrote about the practice of “territorial segregation and of a cordon sanitaire putting the impure people inside a barbed wire into a sort of a cage”. For this reason, as part of his proposed anti-boycott law, Ambedkar also proposed to bring within the definition of boycott, “refus[al] to let or use or occupy any house or land, or to deal with, work for hire, or do business with another person, or to render to him or receive from him any service”. Part of this was covered by Article 15(2) of the Constitution, in its guarantee of access to shops, which was understood by the framers to include non-discriminatory access to services. However, in recent years, religion-driven housing discrimination — which inevitably leads to segregation — has emerged as a serious problem, especially in urban areas.
With its focus on caste-panchayat driven community boycotts, the Maharashtra law leaves a significant area of discrimination untouched. To address this, a comprehensive anti-discrimination law is required, on the lines of the Civil Rights enactments in the United States and the United Kingdom. For now, however, the Maharashtra law is an important first step, that carries forward the judicially-aborted goals of the 1949 Excommunication Act, and the rarely-used Protection of Civil Rights Act. For this, the government of Devendra Fadnavis must be applauded. The devil, of course, will now lie in the implementation.
(Gautam Bhatia is a Delhi-based lawyer. His book, Offend, Shock or Disturb: Free Speech under the Indian Constitution, was published in December 2015.)
