To recapitulate our discussion in the last post: disparate impact occurs when policies neutral on their face nonetheless place burdens upon particular groups (e.g., promotion policies dependent upon spending a specific number of days in a year at office have such an impact upon pregnant women). The question is whether Article 15 is attracted in such cases. We have noticed that opinion is divided in other jurisdictions, and the text and structure of Article 15 appears to militate against this conclusion.
Let us now turn to constitutional philosophy. What philosophical reasons exist for arguing against disparate impact generally? It is the Hayekian idea that a violation of liberty must necessarily be specific and intentional to be so. To repeat an example we have examined before on this blog: if someone locks me up in a house, that is a violation of my freedom; however, my inability to fly unaided because of my body structure and the forces of gravity cannot properly be called a violation of freedom – it is a simple inability. Analogising from this, Hayek argues (described here) that the background economic and social structure is much like the forces of gravity and my body structure: if I am too poor to buy a ticket to a movie theatre, that is terribly unfortunate, but it isn’t a violation of my freedom the way it would be is someone physically barred my access to the said theatre even after I had purchased the ticket. Against this, we can place the arguments of G.A. Cohen, for whom the social and economic structure, being State-created and then State-maintained (if I try to get into the theatre without a ticket, the police will physically bar me from doing so) is indeed a violation of freedom. Applying the arguments to disparate impact: let us assume – hypothetically – that because of various economic and social reasons, Dalits are by and large unable to access a good primary education. Correspondingly, they fail to do as well as others on “merit based” college entrance examinations. A Hayekian would argue that this is no discrimination, because the test itself classifies you on your intellectual ability, and the reasons why Dalits cannot make it have nothing to do with the intentions/purposes of the test itself. Readers can construct the opposing argument for themselves.
What about our Constitution? In discussing free speech, we have argued that our Constitution is more Cohen than Hayek, but leave that be for a moment: previously, we have discussed how many aspects of the Indian constitution are transformative in the sense that they seek to replace and transform prior value and ethical systems with different ones altogether. Article 15 is a classic example of this, seeking to transform India from a society in which caste, religion and sex-based discrimination was rife and invidious into one in which such discriminations were entirely invalidated.
But let us think deeper about this. Discriminatory practices did not exist in a vacuum – they were grounded upon a core set of ideas that linked a person’s worth with his birth. Various acts are simply the concrete manifestations of the ideas at play, and it is that that a transformative constitution attacks at its root. In other words, Article 15 doesn’t only seek to legally abolish discriminatory acts and policies – it seeks a transformation of the set of moral, ethical and political values that justified the said discrimination in the first place. But if this is true, then as long as the impact of that value-system continues, the central purpose of Article 15 has not been fulfilled. So suppose that for centuries, Dalits were socially and educationally suppressed because of assumptions about their human worth; because of this, their present social and economic situation is such that an access to good quality primary education is out of reach; and this, in turn, means that they do worse on college entrance examinations. Here, disparate impact is directly traceable to that very set of societal assumptions, policies and practices that Article 15 was seeing to transform out of existence.
Another example may make thing even clearer. Here is an excerpt from a famous article by Joan Williams:
“Western wage labor is premised on an ideal worker with no child care responsibilities. In this system men and women workers are allocated very different roles. Men are raised to believe they have the right and the responsibility to perform as ideal workers. Husbands as a group therefore do far less child care, and earn far more, than their wives. Women are raised with complementary assumptions. They generally feel that they are entitled to the pleasure of spending time with their children while they are small. Moreover, even upon their return to work, the near-universal tendency is to assume that women’s work commitment must be defined to accommodate continuing child-care responsibilities. This gender system results in the impoverishment of women, since it leads mothers systematically to “choose” against performing as ideal workers in order to ensure that their children receive high-quality care. The phenomena that comprise the gender system today are often noted, but the way the system functions as a coherent whole remains largely hidden.'”
Let us, for the purposes of argument, accept the truth of this critique – that is, wage differentials are directly linked to assumptions about the proper role of women in bringing up a family. But it is also a historically-accepted fact that such assumptions were themselves predicated upon assumptions of women’s ability and character that treated them as less worthy or deserving of respect than men – and furthermore, women themselves had no say in the construction of these assumptions. Now if the purpose of Article 15 is to transform prior values celebrating oppression to new ones founded on equal respect and valid participation and consent, then we must also accept that a more concrete purpose of Article 15 is to replace the existing set of values that viewed the proper role of women as being confined to the home, the kitchen and child-care – because, as a matter of historical fact, these values are predicated on denying women both respect and agency (the fundamental Article 15 ideas). In which case, a disparate impact upon the earnings of men and women that is founded upon those very set of values (as the Williams’ article shows) is not only problematic, but constitutionally problematic.
In this context, President of the Republic of South Africa v Hugo, decided by the South African Constitutional Court, is a classic example of transformative constitutionalism working in precisely this fashion. To celebrate his inauguration, President Mandela pardoned a number of prisoners, all of whom shared one common characteristic: they were mothers of children under the age of 12. This move was challenged on the grounds of sex-discrimination. President Mandela argued that his act was motivated by concern for the welfare of the children, who were deprived of the care of their mothers at a young age. Over a strong dissent from Kriegler J., the Constitutional Court upheld the pardons for certain reasons that we need not here go into; but what is of singular moment is how the Court dealt with Mandela’s reasoning:
“The generalisation upon which the President relied is a fact which is one of the root causes of women’s inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared… at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”
Readers will note that the argument bears the same structure and form as our discussion above.
What objections may be made to our contention? Now it may be argued that after the Constitution came into being, Article 15 lifted women (and Dalits) to an equal status, and therefore, if presently there is a disparate impact, it must be because of individual choice – an argument the US Seventh Circuit Court of Appeals accepted in EEOC v. Sears. But there are two problems with such a suggestion: first, as we have argued before in this blog, such an approach places the burden of change upon the wrong party; not only are we accepting that a set of oppressive values and practices existed, we are also requiring those subjected to that regime to take it upon themselves to change it once the formal barriers have been removed. That does not seem fair. Secondly, as Akhil Amar argues in the context of the American 19th Amendment that gave women the right to vote, constitutional changes of this sort are not merely prospective and forward-looking – they are also admissions of deep, prior historical wrongs, and a further promise to make amends. And if that is true for Article 15, then one obvious way of making amends is a disparate impact test, that places the burden upon the government to show that its actions, that negatively affect hitherto disadvantaged and wronged groups, are necessarily and appropriately called for in the specific circumstances.
This, then, is my suggestion: Article 15 does apply to disparate impact situations, but in a qualified way: where disparate impact is the result of those lingering prejudices, practices, values and ideas that it was the Article’s purpose to eliminate, a constitutional challenge is called for.