Article 15 and Typologies of Discrimination – I: “Grounds”

Article 15 prohibits discrimination on “grounds” only of religion, race, caste, sex, place of birth or any of them. In previous posts, we have examined the scope of the non-discrimination clause with respect to its enumerated (and unenumerated) categories. It is worth nothing, however, that the seemingly neutral word “grounds” itself incorporates a set of political choices that ought to be examined and critiqued. In this post, we shall analyze two such choices.

First, in choosing the word “ground“, the Constitution, by exclusion, makes motive irrelevant. In R(E) v. Governing Body of JFS, the UK Supreme Court invalidated a Jewish school’s admissions policy under the Race Relations Act, that prohibited discrimination on the grounds of race. The school argued that its policy was actually aimed at selecting orthodox jewish students, which was a question of religion, not of race. Irrelevant, said the Court. Whatever the motive or purpose of the admissions policy, the test that it used for selection was race-based (orthodox jewishness was a function of one’s descent along that matrilineal line). Thus, while the motive behind the classification was arguably legitimate, the grounds on which said classification was made (in order to fulfill the motive) was not, and that was all that mattered.

Suppose, for instance, that the Delhi Police wishes to recruit only Hindi speakers into the force (a form of linguistic discrimination, which the Article 15 does not prohibit); in order to do so, it limits its selection only to people born in Delhi, thinking that this is the most convenient way of making the selection without actually having to test language skills. Such a classification would be vulnerable under Article 15 because while the Delhi Police’s motive (selecting particular language speakers) conforms with Article 15, the grounds it has chosen do not. It is obvious – in addition to the text – to see why this must be so: if motive was brought into play, then the difference between Articles 14 and 15 would dissolve: in the Delhi Police example, for instance, we would be back to analyzing whether there was intelligible differentia between Delhi-born and non-Delhi-born persons that bore a reasonable nexus to the governmental objective of an all-Hindi-speaking police force. If that were so, then Article 15’s specific selection of particular categories would become redundant (this, as most readers would have guessed, bears a close connection with the debate over standards of scrutiny under Article 15, a question we do not have the space to consider at this point). The reason why Article 15 exists is because certain groups have, historically, been invidiously discrimination against on the basis of nothing more than rank prejudice, to the extent that there now exists a near-irrebuttable presumption that classifications targeting such groups are constitutionally suspect. By singling out those categories, Article 15 serves a unique purpose that may not be conflated with the more abstract, formal equality guarantees of Article 14.

Secondly, consider the problem of disparate impact. Disparate impact occurs when facially neutral policies nevertheless cast a disproportionate burden upon specific groups. Let us take a very simple example: promotion in a job is conditioned upon being at work for at least eighty percent of the year’s designated working days. Now, the “ground” upon which the classification for promotion/non-promotion is being made is facially neutral in that it relates to time spent at work; but clearly, pregnant women as a group will be unable to meet the condition imposed. Thus, the promotions policy will have a disparate impact upon pregnant women – as a group, their chances of promotion are reduced to negligible. As is obvious, disparate impact plays a crucial role in affirmative action controversies, labour and workplace law, sex discrimination and so on.

Disparate impact goes under the name of “indirect discrimination” in European jurisprudence. Article 2(b) of the 2000 Council Directive states that “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” Whether or not “particular disadvantage” occurs in a particular case is, of course, a factual enquiry, which admits of no bright line tests. For example, assume a governmental institution has sixty percent men and forty percent women, but in every promotion round, eighty percent of the promotees are men – that is the kind of statistic that will establish presumptive indirect discrimination, and place a high burden upon the State to argue that it is “appropriately and necessarily” mandated by a legitimate governmental objective.

Disparate impact, on the other hand, was rejected by the American Supreme Court in Washington Davis,  where the use of verbal skills as recruitment tests in the Washington Police Department was upheld despite disproportionately affecting African-Americans, since no discriminatory purpose was demonstrated. Subsequently, Congress overturned this decision by amending the Civil Rights Act, which in turn was the subject of a contentious Supreme Court case in 2009, Justice Scalia arguing that a disparate impact test violated the guarantee of the equal protection of laws, and the Constitution’s aim of being “color-blind“. The argument here is that by making disparate impact constitutionally relevant, you are violating the Constitution’s commitment to non-discrimination by picking out certain groups over others for favorable treatment. To go back to our pregnancy example – a Scalian would (presumably) argue that making a special exception for the promotion of women would violate Article 15 because it placed men at a legal disadvantage by taking specific sex-based characteristics into account, and thereby discriminating on the grounds of sex. 

The contrasting approaches in the EU and the United States suggest that the relationship between disparate impact, equality and non-dicrimination is a contested one. What does our Constitution say? There are two reasons, grounded in text and structure, that argue against reading disparate impact into Article 15. First, the use of the word “grounds”, as illustrated above, seems to limit the clause to cases where the basis of the classification is one of the prohibited categories. And secondly, the Constitution itself seems to recognize the perils of disparate impact by enacting affirmative action provisions for education and employment – Articles 15(4) and 16(4) . In other words, by providing the government with the tools to remedy the effects of disparate impact that would result from a technical reading of Article 15(1) (and 16(1)), the Constitution mitigates its effect – and thus, by specifically providing for those situations, excludes all other cases by necessary implication (“expressio unius…”)

Unfortunately, the position is complicated by the shift in the Court’s jurisprudence after the 1975 case of State of Kerala v. NM Thomas, where the Court, departing from its established position that 15(4) and 16(4) were exceptions to the equality provisions of 15 and 16, held instead that they were “emphatic expressions” of the basic idea of substantive equality already contained within 15 and 16. In other words, post-Thomaswe are to assume – for instance – that the constitutional justification for affirmative action lies not in 15(4), but in 15(1), and the conception of equality and non-discrimination it embodies. What, precisely, is the content of this concept, and does it extend to other cases of disparate impact? We do not know.

In the next post, we shall consider what our constitutional philosophy has to say about this.

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Filed under Article 15 (general), Disparate Impact, Non-discrimination

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