The denial of my entry into an upmarket mall has sparked an invigorating debate about the spatial nature of a mall, especially in the context of its accessibility. Is mall a public space or a private space?
Depending on the definition, the question of who has access (or not), is rationalised, justified and argued. Many argue for inalienable rights to enter the mall. Others argue with self-righteous candour that since the mall is privately owned, it decides its admission policy.
I find this debate deeply disconcerting. The fact that some questioned the public nature of mall came as a surprise. Is mall a private space? Is accessibility to a mall not a civic right? What is a difference between the public nature of a mall and the public nature of a temple?
The question that troubled me was if the entry into a temple (public or private) irrespective of race, caste and creed is a constitutionally given right, then why an entry into a private mall an ambivalent question?
I decided a do a short research to examine the legal definition of public space in India. I found that there has been considerable juridical contemplation on the legal character of public space. The definition of the public space has been discussed and decided specifically in the context of two unlikely Acts.
For instance, in the context of the Motor Vehicle Act, 1988, Andhra High Court argued: "The definition of 'public place' under the Act is, therefore, wide enough to include any place which members of public use and to which they have a right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of the public and be available for their use, enjoyment, avocation other purpose."
In the context of Cigarettes and Other Tobacco Products Act, 2003 the Supreme Court upheld the law in which the definition of public space is declared: "Section (4) of the COTPA 2003 prohibits smoking in all public places. 'Public Place' is defined as any place to which the public has access whether as of right or not and includes all places visited by general public namely auditorium, hospital building, railway waiting room, amusement centers, public offices, court buildings, educational institutions, libraries, coffee houses, canteens, banks, clubs and also open spaces surrounding hotels/restaurants etc." In section 2(d) of this Act, it also includes shopping malls.
So if we take these definitions as appropriate comprehension of public space as articulated by the Indian courts, then the thumb rule would be that, any place where smoking is prohibited is a public space. In this context, a mall is unambiguously a public space, let there be no debate on that.
Now the second question is: how accessibility to public space is regulated.
In this context, I would like to distinguish between a mall and shop/restaurant/club/theatre. The key distinction is that, in the case of a shop/restaurant/club/theatre the accessibility is dependent on a financial contract - that on the payment of a certain sum of money, services are provided. And these services can come with certain rules attached, which might include a dress code.
In that context a hotel, club or a restaurant can deny entry or not provide services if the client refuses to abide by its rule.
However a mall (even privately owned) cannot have such rules. A mall, instead, celebrates its "publicness". It invites public's access, so that they can shop, entertain and dine under the laws of financial contract, as I have mentioned above.
The trouble is that in my case, Quest Mall did disallow me on the basis of my appearance.
As a matter of fact, one of the defences of Quest Mall, Kolkata has been that it does not indeed discriminate. That is why we do not see any signage that proclaims that admission or accessibility to the said mall is restricted.
The trouble is that in my case, Quest Mall did disallow me on the basis of my appearance. It is because of a deeply problematic unstated assumption, which betrays its prejudiced position that leads to access being denied in a public place.
The disturbing hypothesis that the security apparatus (guards to the higher authority) of Quest Mall makes is that those who wear certain attire will disrupt the class decorum of the mall. I protested this pre-judgment that anticipates a possible security threat merely on the basis of attire (which connoted a specific class).
It is the implicit belief that those who wear dhoti and lungi are intrinsically prone to disturbance and not those who are dressed in a western outfit, which is the crux of the outrage.
That, it is not the act of being obviously annoying (being drunk, abusive or violent) but the possibility of being annoying both aesthetically and physically if one wears a dhoti and lungi that is a troubling bias. This prejudgment without evidence is the ethical problem.
Mall's not only have high degree of perpetual surveillance (CCTV and human guards), but they also prevent those who they have plausible evidence of a potential security threat. X-ray machines and physical frisking by security guards are employed for locating potential threats.
Please note, I do not protest this credible method of identification of a possible security threat. I am protesting the presumption that a person in a specific form of attire is a probable security threat.
This is unequivocally class profiling. Here, unspoken stereotypes are employed to suspect or target an individual based on what they wear. It is this prejudgment that leads to a preemptive denial of accessibility to a public space that is bigoted and prejudiced.
For me such a move is as intolerant as denial of rights done on the basis of caste, creed, religion, sex or place of birth. Here discrimination is done on the basis of what one appears. I would argue that this is no different than the discrimination done on the basis of race - how one looks (colour of one's skin).
I strongly think that such a discriminatory practice be strongly protested irrespective of the class position one occupies. In these times of diminishing public spaces, and rising neo-liberal polity where the logic of the private and capital is becoming the new form of governance, I feel it is politically important to intervene and recover access to the public space.
The right to enter a public space has been one of cornerstones of the Indian Independence struggle. The movement by BR Ambedkar in 1930 to allow Dalits to enter Hindu temples eventually gives birth to the powerful anti-discriminatory Article 15 of the Indian Constitution. For him it was a matter of equality, and not religion.
In today's times, malls are neo-liberal architectures of inequality, that unashamedly project exclusion and superiority. In the case of Hindu temples it was caste-based supremacy and today it is class-based superiority that decides accessibility to public space.
My intervention was a political attempt to question, challenge such class-based profiling and exclusion that I feels needs to be vehemently protested.