Gautam Bhatia’s analysis of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016, which was passed by the Maharashtra legislature recently, looked at the relationship between the concept of a “social boycott” and the fundamental right of a religious denomination to manage its own affairs
The final version of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016 contains a few key departures from the draft bill (available here) The most important is the scope of the word “victim” under the definitional clause (S. 2(h)). The Draft Bill defines a “victim” as “any individual who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of social boycott.” The Act limits the definition to “any individual who has suffered or experienced physical or monetary harm or harm to his property as a result of the commission of social boycott.” The removal of the words “mental, psychological, emotional” has the potential to severely restrict the scope of the Act. The primary harm of a boycott is dignitarian in nature – it harms by stigamatising and excluding the boycotted person, and blocking off his access to community resources. In many cases, it will be difficult to show actual “physical” or “monetary” harm, if one was to take these terms literally.
In my view, however, there is enough reason for the Courts to interpret “physical harm” broadly, so as to include dignitarian harms. This is because many of the instances of social boycott that are expressly set out under S. 3 of the Act have nothing to do with physical or monetary harms. Section 3(i), for instance, deals with obstructing an individual from practicing any social observance or custom; 3(iii) deals with social ostracism; 3(iv) talks about shunning a community member “resulting in making the life of such member miserable.”; 3(viiii), inter alia, deals with severance of social relations; 3(xi) deals with preventing the children of the community from playing together with children of specific other families; 3(xv) deals with community expulsion. It therefore seems clear to me that if “physical harm” under S. 2(h) was to be restricted to bodily harm, large sections of the Act would become redundant. Such an interpretation is to be avoided. Consequently, a broader interpretation of the term “physical harm” is to be preferred, one that includes within its scope the kind of harm that all these sub-sections are aiming at curtailing – which is, essentially, harm to dignity.
With that out of the way, let us now examine some key constitutional issues with the Act.
(i) The Relationship between the Act and the Supreme Court ruling in Sardar Syedna Saifuddin
On this blog, we have extensively discussed the judgment of the Supreme Court in Sardar Syedna Saifuddin v State of Bombay (the Dawoodi Bohra case). Recall that in that case, a Constitution Bench of the Supreme Court struck down the 1949 Bombay Prevention of Excommunication Act. The Bombay Act defined “excommunication” as “the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature”, and went on to add that these rights included “the right to office or property or to worship in any religious place or a right of burial or cremation.” The majority held that the Act violated right of religious denominations to manage their own affairs under Article 26(b) of the Constitution, and was not saved by Article 25(2)(b)‘s social welfare or reform exception, since it outlawed even those excommunications that were made purely on religious grounds.
Now, the Maharashtra Social Boycott Act defines a “community” as “a group, the members of which are connected together by reason of the fact that by birth, conversion or the performance of any religious rites or ceremonies, they belong to the same religion or religious creed and includes a caste, sub-caste…” The focus on “religious creed” as an addendum to “religion” (notwithstanding the absence of the word “denomination”) seems to suggest that groups like the Dawoodi Bohras will fall within the definition of “community”. Now, if that’s the case, then there are a number of provisions under Section 3 that rather clearly appear to speak to precisely those situations which, the Supreme Court held in Saifuddin, fell within the protected ambit of Article 26(b). 3(i) penalises obstructing a person from observing any religious custom; 3(ii) does the same for religious rites; 3(v) deals with preventing a person from accessing religious buildings, and 3(vi) does the same for cemetaries and burial grounds (an example that was specifically taken in Saifuddin); and 3(xv), as an omnibus clause, prohibits community expulsion (read: excommunication).
It appears, therefore, that unless one were to hold that a religious creed is not a religious denomination (and thus open the floodgates to threshold litigation over whether a particular group constitutes a creed or a denomination), a significant section of the Boycott Act is unconstitutional under the interpretation of Articles 25 and 26 advanced by the Saifuddin Court. One might argue that the problem of unconstitutionality can be got around in two ways: one, by excluding from the scope of the Act instances of boycotts that are imposed purely on religious grounds. That, however, appears to do violence to the plain language of many of Section 3’s sub-clauses, which are clearly meant to deal with religion-based community exclusion. The second is a similar move – i.e., to limit the operation of the Act to instances that may properly be characterised as a “social boycott” (as the name suggests). Here again, it is doubtful whether this interpretive move is possible, since in the scheme of the Act, the social and religious boycotts are inextricably linked (See Sections 3(i), 3(ii), 3(iii) and 3(viii).
This does not mean that I am arguing for the Act to be struck down – far from it. On this blog, I’ve argued on more than one occasion that the majority in Sardar Saifuddin is incorrect, that Chief Justice Sinha’s opinion is truer to the constitutional scheme, and that the decision should be reversed. A petition asking for just that has been pending with the Supreme Court for the last thirty years. Perhaps a challenge to the Maharashtra Anti-Boycott Act will finally compel the Court to reconsider (what I consider to be) one of its most damaging precedents.
(ii) Implications for the Freedom of Assembly, Association, and the Freedom of Speech and Expression
Clearly, the Act prima facie infringes Articles 19(1)(a), (b), and (c). It is a rather trite proposition that the freedom to associate includes the freedom not to associate. Undeniably, the Act affects the freedom not to associate – in fact, that is the point! Section 3(iv) prohibits the cutting off of social or commercial ties, 3(viii) prohibits instigating others from social, religious, professional or business relations with the boycotted member – and of course, 3(xv) prohibits expulsion. The Explanation II to Section V states that persons who participate in a meeting with a view to impose a social boycott, or who vote for imposing a social boycott, are deemed to have committed an offence. This is a prima facie infringement of Articles 19(1)(a) and 19(1)(b).
There are two possible responses to this. One is to go down the route traveled by the Supreme Court in Venkataramana Devaru and by Chief Justice Sinha in Sardar Saifuddin: i.e., to view the law as furthering the mandate of Article 17’s prohibition of “untouchability”. Previously on this blog, I have argued that Justice Sinha was right in Saifuddin to read “untouchability” in a broad sense, and to include social ostracism and expulsion within its meaning. The issue then becomes a clash between rights under Article 19(1)(a) – (c) and Article 17.
The other response – and one that I am sympathetic to – is to read the “morality” restriction under Articles 19(2) – (4) as referring to constitutional morality. Previously on this blog, I have argued that a combined reading of Articles 15(2), 17 and 25(2) yield something that we can call the “anti-exclusion” principle: the Constitution respects the autonomy of groups and communities until the point (and no further) that their actions lead the exclusion of individuals from access to basic goods (including cultural goods) that are required to lead a dignified life. The Maharashtra Social Boycott law is based upon the anti-exclusion principle, and is therefore a reasonable restriction upon the Article 19 freedoms. I do feel, however, that a few of the sub-clauses of Section 3 will fail this test. For instance, I am not sure whether Section 3(xi) – dealing with preventing or obstructing children of the community from playing with children of specific families – will meet the constitutional threshold.
I do not think that anyone will actually challenge the Social Boycott Law. If that does happen though, it will certainly be an interesting situation!
PS. One interesting aspect is the reference in the Preamble to “fraternity” as a constitutional goal.
PPS. The history of anti-boycott legislation is a long one, of course. It goes back to the 1921 Burma Anti-Boycott Law, and was also proposed by Ambedkar to the Minority Rights Commission. Part of Ambedkar’s proposals were incorporated into the 1955 Protection of Civil Rights Act. Ambedkar discusses the anti-boycott law in Chapter 3 of What Congress and Gandhi Have Done to the Untouchables.