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Writ[e] & Talk | Ep 7 | ‘Private Acts’ and Structural Inequality: Law and Housing Discrimination

Listen to the episode here: Spotify | YouTube 


Host: Ms. Sayantani Bagchi

Speaker: Prof. Rowena Robinson


TRANSCRIPT


Prof. Sayantani Bagchi

I extend a very hearty welcome to all our listeners. And today we have with us a very, very familiar name, Professor Rowena Robinson and I heartily welcome Professor Robinson to our podcast. I look forward to learning several new things from her and her experiences while she penned her thoughts while writing this piece, which is remarkable and all of us here at CALJ we have had the opportunity to go through her piece and we are so interested in learning several insights from her and without further delay I would like to welcome ma'am for being with us today. 


Professor Robinson, I welcome you to the podcast.


Prof. Rowena Robinson

Thanks very much. Thank you for inviting me to this podcast.



Ms. Sayantani Bagchi

The primary argument of this paper is that the Muslims in urban areas in India face certain structural and pervasive patterns of discrimination. And not just discrimination but inequality when it comes to renting and owning of urban property which disadvantages them not only as individuals but definitely as a despised and stigmatized group. The need for legal and policy measures to address this issue and argues that public activism and demos prudence can be powerful tools for promoting wider democratic change.  The paper examines the cumulative disadvantageous effects of private acts and how they contribute to marginalization, conflict and violence. It also provides a historical context for housing discrimination and ghettoization, highlighting the link between these practices and patterns of collective conflict and violence. The paper calls for a more proactive approach towards addressing discrimination. It definitely suggests that the judiciary should take a more active role in addressing housing discrimination, and towards the end, we see that the paper suggests that public activism and demosprudence can certainly be powerful tools for promoting social change and that they can help to create a more inclusive and equitable society. 


Now, to begin with, I would request Professor Robinson to kindly provide us a context which I have already dealt with, but yet we would like to have the context from the author herself. And we would request ma'am to kindly give us a brief overview of the basic foundations of the backdrop of the paper and explain her core argument to our listeners.


Prof. Rowena Robinson

Right. Thanks very much. So this paper is an attempt at a sociological understanding of the relationship between private acts and constitutional law. In legal understanding, private acts are seen as not falling under the lens of constitutional provisions and protections. Moreover, the understanding of private acts is seen as if they are voluntary acts between individuals who come to agreements for their own benefits and that these cannot therefore be inherently inegalitarian and discriminatory from the point of view of group membership. 

However, the paper therefore focuses from a sociological perspective on pervasive acts of discrimination that, though they may seem to be affecting individuals, are also actually impacting groups to which these individuals belong, and points out that these individuals are being disparaged and discriminated because of their belonging to these groups. This kind of understanding is difficult to examine from within the legal provisions of a democratic constitution, because as the argument of the paper and as the scholarship of many legal scholars has shown, Constitutions within bourgeois democracies have typically built on the language of rights. The language of rights is an individual language and it focuses mostly on the importance of protecting individuals against the state, against any kind of aggrandizing state. And therefore, rights are defined in a vertical relationship between the individual and the state.  

The paper brings into focus the idea of horizontal rights that has been raised in other constitutional jurisprudences and has been dealt with in other constitutional jurisprudences in one of two ways. The first way has been to try to give some indirect protection to citizens in relation to each other when it comes to discrimination between them and that indirect protection is given by extending constitutional provisions to private acts, indirectly, if not directly. The second way in which constitutional jurisprudences have jurisdictions have sought to alleviate this problem has been through direct policy intervention, through legislation on this matter. 

My argument in this paper is simple. It doesn't see law and public policy as two separate domains, but rather seeks to interconnect them and argues that in the case of India, given the historical situation and ongoing political circumstances, it may require it may require a judicial nudge for policy to actually come into action. And for that to happen, in turn, we require social and maybe legal activism. Thanks. 


Ms. Sayantani Bagchi

Thank you so much, Professor. And if I may ask, was there an immediate reason for you to take up this particular piece? Because as my understanding goes, and while I was reading this piece, I think you have beautifully articulated several concerns that we generally don't talk about, specifically when it comes to the horizontal applicability of fundamental rights. And we tend to kind of  ensure that we speak only in the terms of vertical of fundamental rights. But was there any specific, any immediate reason for you to take up this research? I'm personally curious.


Prof. Rowena Robinson

Right, there are perhaps two reasons. One is because of my earlier work, which has been a lot on ethnic conflict and violence, and in the course of which I have done considerable fieldwork and have seen the kinds of segregation and ghettoization that increasingly marks many cities and towns in India. The second is the fact that in more recent years I have become interested in constitutional law and in a sociological understanding both of the history and the workings of that law. And in looking at constitutional provisions as well as at Indian constitutional history, I became very interested in Ambedkar's and his notion of fraternity.

As you will well know, the idea of fraternity is very little talked about in law, even in legal philosophy. We have a lot on liberty. We have a lot on equality. But the idea of fraternity, what it means and what would it mean on the ground is something that a legal scholarship has perhaps been a little reluctant to discuss fraternity itself being a vague, perhaps abstract principle, one that is not easy to pin down and also is not easy to adjudicate upon. How do you provide for fraternity? Legally at least. So this interest in fraternity made me turn because, and we know that Ambedkar spoke particularly on the idea of fraternity in the assembly in his last major speech to the assembly. And the idea of fraternity as Ambedkar elucidates it seems to me to take into account this idea of citizenship on the ground, what it means to be neighbors, how do we live with each other? So my thinking about the particular subject of this paper brought together these two concerns of mine.


Ms. Sayantani Bagchi

Thank you so much, Professor. So we will proceed to the questions that we have prepared and we would like to know your views on these questions. Professor, you have talked about the Gujarat prohibition of transfer of immovable property and provision for protection of tenants from eviction from premises in Disturbed Areas Act. So let's call it the 1991 Act, which later amended in 2020. Now, this law enables the state to declare an area to be disturbed following which transfer of property in the area requires the permission of the collector. As of 2023, as suggested by several reports, we have seen that the Gujarat government used this provision in the Amrili district of Gujarat. So, how do you think or what could be the status. Could we consider them to be constitutionally challengeable? And if so, on what grounds specifically?


Prof. Rowena Robinson

Thanks for that question. Let me clarify right at the start that I'm not a legal expert. And I come at these issues sociologically. So I don't want to speculate on matters where my legal scholar colleagues, including you, have the expertise. And you can better inform us. But let me at least talk about the constitutional and other issues that have been raised in the courts when it comes to these cases and those are firstly with regard to the principles of natural justice. In that the law doesn't allow for any scope for residents to raise any objections on matters of which properties and which parts of the city will be declared as disturbed areas. In other words, citizens and owners are not given an opportunity to be heard at all. 

Moreover, the courts have also heard plaintiffs raise the objection that this act employs the term improper clustering. And it seeks to define what is the proper clustering of one community. In that, it states that the proper clustering of persons of one community shall mean in relation to a geographical area or a small or large social unit those who have something in common, such as norms, religion, values, identity, and so on. So it declares this as being the definition of the proper clustering of persons of one community. It has been argued by plaintiffs in the court that this goes against all notions of constitutional morality and fraternity. It is also argued that the act appears to be bringing in through the back door the doctrine of vicinage, which decades ago the Supreme Court had held as void and unconstitutional. My own colleagues in the legal fraternity would be better placed to advise if, as I suspect, it is possible to argue that the arbitrary extension of the Act, for instance as you have just spoken of to Amrili district where violence has actually not taken place for quite a long time, if it harms equal treatment provisions under the constitution. Do you want to follow up on that?


Ms. Sayantani Bagchi

Yes. Professor, following up from there, if we could also realize that if such a legislation were to be considered as lawful and constitutional, what kind of safeguards do you think we could build in it so that we could deal with the excessive and arbitrary delegation of power? And we could prevent any kind of an external influence that is probably undesirable influence, if I can frame it in that manner, and ensure that there is, at least despite the fact that it is lawful and constitutional, at least the basic safeguards are taken care of. 


Prof. Rowena Robinson

It will be the police inspector of a local police station who calls both the parties and two witnesses who must be neighbors and he ascertains if there is any objection to the sale or if there is any undue coercion that has been employed in the proposed sale. This inspector's report is then forwarded to the Joint Police Commissioner and it goes up to the city deputy collector. 

Now clearly what we are seeing then is that a lot of power in these transactions is being passed down to lower bureaucratic and police authorities. And so there must be some protection when it comes to that matter. Firstly, I think that with regard to the Act itself, if the Act is to remain in place, there must be a provision that parties should be heard before a particular area is declared to be disturbed, which is one of the petitions that has been made in the courts. Declaration of a disturbed area must be strictly temporary, which is now actually, the Disturbed Areas Act is being used in a way that is declaring areas to be disturbed for a long period of time, not just in a temporary way, and extending these over a period of time. So if it is not strictly temporary, then I think it may be seen to be abrogating both constitutional laws of perhaps, laws of equal treatment, perhaps also ordinary contract law, and so on. 

So apart from that, in its application, one would suggest that high officials be made responsible and accountable for conducting these hearings, conducting these inquiries between the parties, so that there is an accountability at the highest bureaucratic level for decisions that are made in this regard. Maybe even such cases need to be reported to or registered at the high court or in the courts so that there is some very serious and rigid accountability for this. I may be wrong in these suggestions, but that's what I can think of at the moment if the law itself is not set aside or certain provisions within it are not set aside. I do think that the provision for the definition, what is proper and improper clustering needs to be re-looked at. Thanks.


Ms. Sayantani Bagchi

Right. Professor, you have cited this case here, which is a very, very integral component of this paper. And it's the Zorastrian Cooperative Housing Society versus the District Registrar, which is a 2005 judgment. So we call it the ZCHS judgment. Now, in this particular judgment, the court, as we see, it has asserted that while it is the constitutional goal to do away with discrimination based only on, if I may qualify it that way, based only on religion or sex, this must be achieved, and I quote, by legislative intervention and not by the court coining a theory that whatever, it is not inconsistent with part three or part four could be declared to be opposed to public policy. Now, could we consider that this holding warrants a review or a fresh challenge? Because a catena of foreign judgments, and it has also been highlighted by renowned scholar, Gautam Bhatia, that they have looked at public policy from the lens of the constitution, and such that the constitution is not invoked to directly invalidate private contractual acts, but is invoked indirectly to interpret private law in a manner that achieves the same result. So professor, what are your views on this?


Prof. Rowena Robinson

I think as I say in the paper, there are two lines in the scholarship on this matter. The one that you have just cited by Gautam Bhatia who proposes that the constitution already has such a provision and it just needs the judiciary to actually apply it. The second is the one by Tarunam Khaitan, who suggests that we need legislation and public policy in order to prevent this kind of discrimination. In my view, as I said earlier, law and public policy are not separate domains. Actually, we may need law to, or at least we may need the judiciary to provide and encourage the state to create legislation. And then even after that is passed, even if we do have legislation, we will still need scrutiny of it. 

So I believe it should be possible to push for a review of this kind. And I suggest that it would help if current research on structural implications of segregation by economists, by social scientists of other kinds are drawn on by the legal fraternity to make the case for such a review. At the same time, judicial review may still need to be followed up by more extensive legislation. For instance, if you take 15 (2), which is the article that Bhatia is citing, that covers access to services, shops, public places. But does it, for instance, cover jobs and employment? In the private sector as well. So we may need a more full-fledged legislation in this regard and even after the passage of a judgment or after legislation, as I just said, we may need, there may need to be awareness and constant scrutiny to ensure that people understand what is, what is prohibited and in order to understand also how they can apply these laws or how these laws apply and they can take recourse to them. Thanks. 


Ms. Sayantani Bagchi

Thank you, Professor. Here we have another question for you. In the piece, you have talked about the broad concept of demos prudence as a means of targeting house discrimination. It has been described as a sort of a judicial trigger and a means to roll the ball of legal change via judicial decision making with an intent to follow it up with social change. Now, as a general concept, do you think that it is a dangerous tool to hand this down to the public and how is it different from other forms of social advocacy or legal activism? But before that, I would request you, Professor, to kindly speak a little about this concept of demosprudence and what this concept of demosprudence entails so that it's easier for the listeners to decode the exact point in question here.


Prof. Rowena Robinson

Sorry, yeah, of course, let me try to do that. Demosprudence, of course, was a concept that was developed originally in American legal scholarship by writers Guinea and Torres. And when they were talking of demosprudence, in my understanding, they were talking really of the  oral. opinions that judges gave from time to time in the courts and how these could spark or target social movements. But the idea of demosprudence that has been used in Indian legal scholarship by, for instance, Bakshi's, Professor Bindra Bakshi's understanding, demos prudence has broader application and understanding. In the way that I use it in this paper, it seeks to capture the potential of all kinds of legal practices that can become facilitators of policy and social change. So it may be understood as the collective action of proponents of justice on behalf of disadvantaged groups, who might work with legal professionals to influence social change. For instance, by pushing for the kind of review that you have just spoken about, or pushing for constitutional interpretations of articles that enhance freedoms and enhance democracy. So with that understanding of what a demosprudence is, let me come back to the question you have raised. 


There are two things that you are saying here. One is with regard to the public, and the understanding in the question, if I may be so brave as to put it, seems to suggest that the public might be slightly threatening and dangerous. And the second part of what you are saying refers to social and legal advocacy and activism. Let's remember that we have got legislation from legal activism, such as in the matter of the right to food, we have got legislation from social advocacy and from public and social movements, such as in the right to information. So we need not and can't be so dismissive about the public or necessarily threatened by it. The Nirbhaya agitation also led to certain necessary changes in the law. At the same time, let me say that I'm only proposing a much more limited and careful building up of a process wherein scholars and members of the legal fraternity come together. While this is not actually different perhaps from social advocacy and legal activism as you have suggested in the question, at the same time what my argument is saying is that in the scholarship even now law and public policy are usually treated as distinct and sharply separate processes as if they don't have any relationship to each other. 


As I have been saying again and again in this conversation, I see them as intertwining and as interconnecting and sustaining each other and also as coming into relationship with social movements. So we need to think about law, public policy, and social change and social movements and social transformation and their relationships to each other. If, for instance, lawyers are willing to struggle the review of this matter of housing discrimination, they may well need the help of social scientists to build their arguments regarding systematic forms of housing discrimination across the country and their implications for inequality of other forms, including access to education, access to health, and so on. If this succeeds as a juridical trigger, the next step may be law or policy in this regard. However, another point is built into this argument that I have made, that unlike some forms of discrimination, housing discrimination builds upon considerable social consent, however unvoiced. 


There is a great deal of consent to living with people of one's own culture and living separate from those who may not be part of the culture that we belong to and take for granted. So for this, even if law or policy come into place, further work will be needed to be done by educationists, public intellectuals, politicians, social activists, in making people and the public understand the enormous costs of segregation, including the economic costs of segregation, and slowly building a consensus that this is not a good thing for a society in the long run. This is a very long-term process, just as in the case of caste discrimination. But law and policy cannot wait for it.  They must proceed it and they must encourage it, is my view. Thanks.


Ms. Sayantani Bagchi

All right, so Professor, I think after listening to you, what I can precisely understand is being a student of constitutional law, I've always felt that what we teach in law schools or as a part of our classes, probably there's a huge gap between the law that we teach and the society we live in • and how we intend to implement these laws in the society. • or the requirements that emanate from the societal patterns that necessitate the formation of the laws. I think there's a huge gap, there's a huge gap which is existing and it's a little difficult. And I cannot resist the urge to know from you as a professor of sociology, as to how do you think we can bridge this gap between law and society • and what happens in the society per se? 


Prof. Rowena Robinson

We'll need a very long conversation for that, Professor Bagchi. Sure, I think law has a very enormous, a very large role to play as a constitutional democracy, as a country that gave to itself certain promises. As those who make laws and those like our friends in the legal fraternity who uphold those laws or try to uphold those laws along with the judiciary and the whole paraphernalia of the court system, that has an enormously large role to play. And while you acknowledge that there is a huge gap between a law and what needs to be achieved. I think that, and there are many who might argue that without social change, changing the law is not enough. And in fact, we should wait to change the law until we have, until society is absolutely and completely ready for this kind of social change. However, as we have noted, there are forms of discrimination and inequality that are invidious. For instance, gender discrimination, caste discrimination, and the kinds of discrimination that we are now talking about today. Can we actually wait for social consensus on doing away with such deep-seated and invidious inequalities. 

Clearly, the law has to take the first step and as our constitution did, it did take the first step in trying to bring about social change. It saw itself as being the harbinger of social change in this regard. And what that does then is that it  changes the conversation that we can have afterwards. Once these inequalities are acknowledged and they are expressed in court judgments or in the constitution itself, the conversations that we have after that cannot ignore them. So we have taken a step forward. We can now begin to talk about inequalities because they are out there in the open. They are part of the text, they are part of the written word, they are part of the conversation and the discussion. And that pushes forward a little bit the steps of social change. Social change is very slow. I will talk about it again later, it is slow. But each of these processes have an important role to play. And I think the law therefore has an important role to play even if the law is in advance of complete social consent because perhaps complete social consent is not achievable. And certainly when we prohibit the worst forms of discrimination and we pave the way for the coming into being of a new kind of society. We do take a step towards a more progressive society and we slowly initiate the kind of changes of people's minds, changes of people's hearts also perhaps that is a longer process but the provisions of the law, the promises of the constitution, the promises of the preamble of the constitution help in creating the space where we can then hope to, over a long period of time, make the shift.


Ms. Sayantani Bagchi

Okay. All right, professor, I am extending this informal invitation to you to come to NLU Jodhpur so that we can have a prolonged discussion on this particular area, because this has been in my mind since a very long time, and I would like to, you know, have your thoughts on this and definitely have our students participate in this discussion. Thank you so much for your words. Now, there's a follow-up question, I think somewhat related to this particular question itself that I just talked about. This paper of yours, it paints a picture that in the Indian society, in the Indian cities, we see that this entire idea is deeply instituted, it is systematized.


This entire idea of segregation is pretty much present. It is deeply embedded. Now, only Maharashtra is the state where we see that there exists laws against housing discrimination in private spheres. This in specific draws attention to the stark seclusion and simultaneous ghettoization of Muslim communities in several parts of the country, more prevalent in northern Delhi. How can counters to such private practices focused on several facets like hard economics, cultural practices and singularity of identity be institutionalized in order to prevent the crumbling of state of cosmopolitanism in India? And in addition to that, how do you think that policies can be initiated by members of the civil societies often discriminatory division of fundings, inadequate aid at community assimilation and overall lack of development at the end of the governmental institutions. So what kind of solutions do we have to these problems that I've just talked about?


Prof. Rowena Robinson

Firstly, as an aside, Professor Bakhti, I would be really happy to accept your invitation to Jodhpur. I now have a somewhat personal connection to Jodhpur because my student has just joined as faculty in IIT Jodhpur and has been inviting me there. So I would combine those two. But getting back to our recording, let me address this question.


And it states that cooperatives are voluntary organizations open to all members capable of using their services and willing to accept the responsibilities of membership without discrimination on the basis of gender, social inequality, racial, political ideologies, or religious considerations. As I mentioned in the paper we are discussing, this was called upon in the Delhi High Court's verdict in the Delhi Dayal Bagh Cooperative Society versus Register Cooperative Society's case of 2012. And that was later ratified by the Supreme Court in 2019. 


In that case, membership to a housing society was sought to be limited to those belonging to the Radha Swami sect And The court argued that the society was governed by the Delhi Cooperative Societies Act and that the Al-Bagh could not frame bylaws in contravention of these principles that I just outlined, which are underlined in the act, because the object of the housing society was housing and it was not religious activity. So here we have a couple of examples of states that have made such anti-discriminatory, statements and provisions in the Act themselves. At the same time, as you can see, this does not protect against renting discrimination, for instance. Thus, at the end of the day, even if the court reviews its position in relation to ZCHS, that can be a step towards paving the way for comprehensive anti-discrimination legislation in the sense that I'm suggesting, wherein social advocacy and legal activism could possibly activate the judiciary. And they, in turn, push for far-reaching and thorough legislation in this regard. In the US, the Civil Rights Act envisages both civil and criminal remedies, where appropriate. Perhaps we can say that we already have a limited example of such civil rights protection in the Protection of Civil Rights Act of 1955, which applies specifically to invidious practices of untouchability. And it criminalizes the enforcing of religious and social disabilities, the refusal to admit persons to hospitals, to sell goods, to render services, et cetera, in this connection and that could then become the basis for also creating a more thoroughgoing anti-discrimination and equal opportunities legislation, which we might need given the kind of complex situation that you described in your question with regard to market situations, hard economics, the question of identities on the ground being strong and becoming more rigid in this connection. 

Thank you.


Ms. Sayantani Bagchi

Professor, the next question that we have is, when you talk about discrimination and housing in the present context, a lot of factors come into play, such as religion, caste, gender and region, and how they interact and compound each other in the context of housing discrimination in India. And as visible in your paper, as we derive from your paper. 

So for effective jurisprudence to be evolved on this matter, and for subsequent policy decisions to follow, a distinction between these intersectionality becomes important. Now, how do you propose this may be achieved either by you in a further research or the courts or any other scholars? So what are the theoretical and methodological challenges you expect?


Prof. Rowena Rowena

Yeah, I think that you're right that a lot of factors come into play, food choices, marital status, lifestyle choices, etc. And these, the question of this discrimination is complicated because these things may overlap each other and as you say, they may intersect. I, my short answer would be that we could take a look at the kind of anti-discrimination bill that was framed by Tarunabh Khaitan and other legal scholars and practitioners. There was a draft bill framed for the Delhi state, and that did not see the light of day in terms of becoming an act. But I think the same model was used to was used by Shashi Tharoor in the bill that he submitted in Kerala to members of the opposition and members of the Kerala assembly in an attempt to try to frame an anti-discrimination act over there. In that piece of proposed legislation, Khetan and the legal scholars have taken into consideration the fact that, for instance, gender and caste or gender and religion may intersect, may overlap, and then how do you frame legal provisions to deal with these intersectionalities and these kinds of, this kind of compounding.


Ms. Sayantani Bagchi

Alright, Professor, you have cited two landmark judgments and I think as a student of constitutional law we have been taught about these two judgments to a great extent. So the first case you have cited is Vishaka and the second one being the NALSA judgment. So when you talk about Vishaka, you cite Vishaka to propose that the possibility and necessity for appropriately called social action litigation has emerged as the case served as a sort of judicial trigger. 

Further, by placing reliance on the enactment of the Fair Housing Act in 1968 in the US, you have claimed that in cases where strong societal prejudice is coupled with political will, judicial pronouncements may serve as a bridge in the present legislation that the transgender persons must be treated as socially and educationally backward classes and affirmative action is required. However, though the judgment is well celebrated, subsequent state action in the form of policy decisions by classifying them as OBCs has been entirely inadequate, if I may call that. So, do you think that there are some other considerations? Apart from the two stated that, you know, the cases of Vishaka and NALSA, so that the judicial pronouncements could bridge the gap, prompting state action, especially in the Indian context, and observing the course of action taken after NALSA. And how do you think these challenges could be identified and can be well-countered? So what is your take on this, Professor?


Prof. Rowena Robinson

Yeah, this does bring into play the politics of each particular state and the dynamics of the play of politics at a particular moment of time. But also as I indicated in the paper, when we begin to see law, policy and social action as interconnecting, we begin to understand that this work needs to continue for progressive change within democratic societies, actually there is no end to it. You may achieve a law or you may achieve a judgment, but the work of progressive action doesn't stop with that. Those are not to be seen as ends, but perhaps as new beginnings for further change and further progress. So, for instance, when between the Vishaka judgment of 1997 and the SHWW Act of 2013, there were some 16 years had to pass and the outrage of the Nirbhaya rape took place just before the passage of that law as well as before the passage of changes to the criminal code in relation to rape.


But each step, so it's a long process and it's a slow process. But each step, as I have articulated earlier as well, each step is crucial. And it might become the impetus for some states, for some social movements in particular states to press for action. The very acknowledgement of the form of discrimination with regard to sexuality and transgender persons, makes visible something that was earlier denied, that was completely invisibilized, that could not be spoken about. Now you can speak about it, you can write about it, you can create a social movement about it, it is out there in the public. That itself is an enormous shift and that itself is a step towards progress.

 

With regard to the transgender persons, the question of them being regarded as OBCs is a larger step, is one that involves resources on the part of the state, it involves the claims of other groups on those resources. It's not a right so much as it is a claim. And the politics of each state will take some time to work those things out. As I'm suggesting it might take a number of years before that sees action, in any particular state and it will require pressure for that action to come about. But we now have the acknowledgement of the third gender on bureaucratic forms everywhere across the country. It might seem very trivial, but it is an enormous shift in public imagination if on every piece of paper that we fill in with for the state, an online form that we fill in, we now have the acknowledgement that gender is not limited to men and women. Each small change in my view incites another and democracy is the ongoing process of this kind of enhancement of freedoms. Thanks.


Ms. Sayantani Bagchi

Okay, so as we move to the last question of this podcast, Professor, there's a case called Kaushal Kishore versus the state of UP, which was decided in 2023 itself. And one of the foremost questions that came up for consideration was whether the fundamental rights under articles 19 and 21 of the constitution can be claimed against parties other than the state or its instrumentalities. Now there are certain problems and issues with the court's reasoning and the applicability of judgment. However, I wish to discuss your thoughts on the expansion of Article 15 clause 2 and whether this case of Kaushal Kishore could be used as a precedent to ask for the social legal right against housing discrimination. That is, how far do you think the court can and should? Ideally expand the scope of the judgment of Cauchyel. And what would affirmative action on the court's part, recommendatory or otherwise, look like if the said expansion is undertaken?


Prof. Rowena Robinson

Okay, let me say that I have not followed this case and from the little I've read it appears that the judgment is confusing and may also rely on problematic reasoning. So I would like to separate the two issues. What I can say is that Article 19 and 21 can be said to be the liberty clauses, especially as concerned with the person, the mind, the body, the thoughts, the expression of the Article 15 (2) is specific to social access to public spaces and services offered to the public. This is the domain in which many countries, many other comparative constitutional jurisdictions have expanded the scope of constitutional protections to cover private acts. And they have instituted legislation such as equal housing, equal opportunities legislation in order to do so, our own justices have, as you said earlier, possibly paved the way for review in this regard, without necessarily now going by the causal route. 


At the same time, let's remember that even if we take these steps, these matters are rarely closed and settled within a constitutional jurisdiction. As you can see, for instance, the US Supreme Court case in 2012, when it ruled in favor of a Colorado baker who refused to produce a wedding cake for a gay couple. And there is a more recent UK victory in the Supreme Court for the Baker couple, the Ashes, who refused to produce a cake for Garrett Lee, who supported the campaign to legalize same-sex marriage in Northern Ireland. The Supreme Court in the UK found that the bakery did not refuse Lee's order because of his sexual orientation, and therefore there was no discrimination on that ground. And the bakers won the case on freedom of expression, which the court ruled includes the right to refuse and not to be forced into expressing an opinion which one doesn't hold. So in the final analysis, As we push for progressive changes, we should be aware that each progressive change brings new questions to the fore. And that's good for us as scholars because we have continuing questions on which to research. As a society, we value each step and particularly the steps which prohibit egregious forms of discrimination and inequality. And we welcome any shift that changes the terrain of what can be discussed, of what we want to be as a society, so that we steadily increase the scope of what is legally, politically, and socially also possible. Thank you very much. 


Ms. Sayantani Bagchi


Thank you so much, Professor. I think your invaluable insights on this particular area of constitutional law, that is specifically the horizontal applicability of fundamental rights, which tends to remain more or less a neglected sphere till date, because this has got a lot to do not only with legal or constitutional questions, but also with regard to how the society responds. to certain issues which are purely legal in nature.

But we as commoners, we tend to kind of neglect them because we feel that this is not something that can be brought within the ambit of the law or the constitution per se. But it definitely does have a constitutional dimension as you have highlighted beautifully in your paper. And towards the end, I just have a very general question for you,  Professor. And this question I tend to ask all our guests, that what would be your tips for anybody who intends to write a piece, which is, let's say a good piece, a good research, wants to go about doing a good research and wants to put their thoughts down in the form of a publishable work.


Prof. Rowena Robinson

Okay, I think this kind of approach that encourages brainstorming and like this conversation between us or my perhaps my little moves in questions of law and jurisprudence as a sociologist. This kind of intermingling of disciplines where we ask people from other disciplines or we take the views of others on what we take on terrain that we take for granted in our own discipline. Like from within sociology we take certain things for granted and we don't question them. I'm sure the same is for those within law. 


But for each of us to converse with each other, I think therein might lie some breakthroughs. And if we have that kind of brainstorming, it might push the boundaries of the questions we want to ask, and therefore also where we would look for answers, where we would look for research material. We might look not only at textual materials or at historical materials or at philosophy of law materials, but we might go to the courts, we might go to the villages or go to the ground level where actual social interaction is taking place to find out what does the law mean in such cases, how is it being used, what concepts are understood, how they are being applied, And that might then actually pave the way for us to be surprised by the kinds of things that our research throws up and make for more exciting conclusions, make for more exciting and innovative research.


Ms. Sayantani Bagchi

Thank you so much, Professor, for coming and sharing your insights with us. I think all of us have learned a lot from this discussion. And we humbly look forward to having you here with us someday. So thank you once again.


Prof. Rowena Robinson

Thanks very much. Thanks to all of you. I enjoyed this interaction and delighted to have had this opportunity.

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