Reading Article 15: Non-Discrimination and the Question of Inter-sectionality

Article 15(1) of the Constitution states:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Now consider the following hypothetical: a State instrumentality refuses to hire only Dalit women. It hires both non-Dalit women and Dalit men on parity with everyone else. So, it does not discriminate on the basis of caste (it hires Dalits) or sex (it hires women), but upon a combination of both of them. Is there an Article 15 violation?

This issue is commonly known as intersectionality. Intersectionality studies the way in which commonly constructed categories like race, sex, religion (precisely the categories listed in Article 15) do not reflect isolated, hermetically-sealed and individuated systems of dominance and suppression, but invariably tend to overlap and interact. Accounts of power-hierarchies therefore, that focus on a single axis (e.g., racism, or casteism) are inevitably incomplete.

The manner in which this incompleteness affects legal analysis comes to the fore in the American case of De Graffenreid v. General Motorsa decision of the Eighth Circuit Court of Appeals. Prior to the passage of the Civil Rights Act, 1964, General Motors did not hire black women. After the 1964 Act, it was compelled to. In 1970, during a recession, it initiated a series of seniority-based layoffs, and consequently, the black women who had been hired in 1964 lost their jobs. Their discrimination claim was rejected by the District Court a decision that was, in substance, upheld by the Appeals Court (we need not go into certain technical procedural issues here), the crucial observation being:

“… this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.”

The problem with this argument, as Kimberle Crenshaw points out in this excellent article, is that it implies that “the boundaries of sex and race discrimination doctrine are defined respectively by white women’s and Black men’s experiences. Under this view, Black women are protected only to the extent that their experiences coincide with those of either of the two groups.'”

That brings us to the question of how to read Article 15(1). The article prohibits discrimination on grounds only of… [x, y and z]… or any of them. The key interpretive issue here is the role of the phrase “any of them” as adding to – or qualifying – “only”. According to judicial decisions, “any of them” ensures that the State cannot get around its obligations by discriminating on the basis of a prohibited category combined with a non-prohibited category. For example, in my organisation, I have a promotion rule based on seniority, but I exclude women from it. I am thus discriminating on the basis of both sex and seniority. The former is a prohibited category. The latter is not. So, I am not discriminating only on the basis of sex, but I am discriminating on the basis of sex nonetheless, and fall within the ambit of Article 15(1).

This is a straightforward case; the problem arises precisely in intersectionality claims, however, because in the Dalit-woman case we discussed above, I am neither discriminating on the basis of caste or on the basis of sex, but an amalgamation of the two – and because of the amalgamation; in other words, my specifically-tailored discrimination towards Dalit women ensures that – unlike the case of sex + seniority – I escape the textual ambit of the statute by escaping the prohibited categories altogether.

Two posts ago, we discussed how, in the context of Naz Foundation, reading sexual orientation into “sex” was the only way to honour the Constitution’s core commitment to the respect and the autonomy principles: the first, in particular, mandated that no discrimination was permitted on the basis of those defining labels that a person is born with, and that constitute her public (and private) identity. The textual reading posited above violates this commitment, and for that reason it must be rejected, notwithstanding precedent to the contrary.

What is the alternative? It is to read the term “or any of them” as including a prohibition on intersectional discrimination. This might appear linguistically strained, at first sight, but surely it is – to use a term coined by the UK Supreme Court – an “intellectually defensible” reading. In other words, “or any of them” is used after “only” to mitigate two situations: discrimination on the basis of a prohibited category combined with a non-prohibited category, which therefore escapes the “only” prohibition; and simultaneous discrimination on the basis of two prohibited categories that also therefore escapes the “only” prohibition, albeit for very different reasons.

This argument, of course, is based entirely upon the text and structure of the Constitution. I have not gone into Article 15 case law, primarily because – for the reasons adduced above – I think that the text and structure provide a satisfactory answer to what might appear – at first blush – the problem of intertextuality arising out of a plain reading of the text.

This might appear to be a mere semantic quibble; no doubt, if a case of this sort was to actually come before the Court, it would hold that an Article 15 discrimination case was made out, textually or not. Nonetheless, I think it reveals an interesting facet about our intuitions about discrimination, that are reflected in our constitutional text – we tend to think of discrimination as taking place through individual a priori categories (race, class, sex). Intersectionality tells us that this reflexive belief might exclude a set of extremely important experiences of discrimination; and that therefore, this deeper and richer sense of what discrimination is ought to be reflected not only in our changed attitudes, but in our laws as well.

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2 Comments

Filed under Constitutional interpretation, Intersectionality, Non-discrimination, Structural analysis

2 responses to “Reading Article 15: Non-Discrimination and the Question of Inter-sectionality

  1. Ashwita

    I’m glad to see that our discussion yesterday culminated in this post. Heh.
    Your next piece should be on horizontal application!

    • The post was put up before we spoke. But, considering that a Constitution Bench is re-hearing RtE, horizontal application is going to be around the place. Assuming that we have a decision within the decade.

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