(In this second essay of a two-part series, Shreya Atrey argues that a textual reading of Article 15(1) would imply that inter-sectional claims must fall within its ambit. Article 15(1) stipulates that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Whether or not inter-sectionality is covered by this wording would depend upon the meaning attributed to the phrase “on grounds only of…”)
In the last post I surveyed the unfavourable outlook of Article 15(1) jurisprudence towards multiple grounds of discrimination. This post proceeds to consider how this jurisprudence can be reconstructed to admit multiple grounds in a discrimination claim under Article 15(1). I argue that a legitimate interpretation of the phrase ‘on grounds only of’ neither makes Article 15(1) a closed list of grounds nor limits it to single ground discrimination; but instead is concerned with finding the basis of discrimination in enumerated or analogous grounds. On the other hand a quantitative delimitation to the general non-discrimination guarantee is: (i) ill-conceived within the contours of constitutional and discrimination law; (ii) historically unsupported in constitutional drafting; and (iii) semantically inaccurate. The final analysis thus proffers a qualitative reconstruction of the phrase by linking grounds to the basis or effects of discrimination.
First, there is internal inconsistency in case law as to the meaning of ‘only’ in Article 15(1). Besides referring to a single ground in a discrimination claim, ‘only’ has also been understood as prohibiting discrimination on enumerated grounds but no more, such that Article 15(1) signifies a closed list of grounds (i.e. religion, race, caste, sex, place of birth). The Delhi High Court decision in Naz Foundation v Delhi Administration introduced the ground of ‘sexual orientation’ as an analogous ground under Article 15(1) and thus has challenged the view that Article 15(1) is an exhaustive list of grounds. However, this cannot perforce mean that ‘only’ can be interpreted to mean discrimination on just one ground since Article 15 can now operate as an open list. In fact, I argue that both these quantitative views of Article 15(1) lack a justifiable basis. Yacoob J of the South African Constitutional Court supports such a dyadic reconstruction in his remarks on the Indian Constitution:
“It goes without saying that a poor Dalit deaf lesbian woman on a wheelchair is far more vulnerable and in greater need of constitutional protection than a female university teacher who has all her faculties and who is part of the “dominant” classes. If this is not recognised, constitutional jurisprudence could suffer. And there is no need to limit protection to the grounds expressly mentioned in the Constitution.”
Secondly, it is useful to note that nothing in the drafting of the Constitution indicates an original intent for interpreting Article 15(1) to exclude multi-ground discrimination. It neither indicates Article 15(1) as restricting the number of grounds in a claim or considering it to be a closed list.
Thirdly, it is helpful to take recourse to semantics here. According to the Oxford English Dictionary, the word ‘only’ can be used widely, and amongst its most popular uses include: (i) as an adverb meaning ‘Solely, merely, exclusively; with no one or nothing more besides; as a single or solitary thing or fact; no more than. Also, with a verb or verb phrase: no more than, simply, merely’; (ii) as an adjective with an attributive sense of being ‘unique’ in character, or ‘alone’ and; (iii) as a preposition meaning ‘except for’. Restating the language in clause (1): ‘no one shall be discriminated on grounds only of…’, it is clear that ‘only’ cannot possibly be an adjective in this sentence. This interpretation falls foul of the basic canons of English language where an adjective is used for naming an attribute of the immediately succeeding noun. Further, it could not have been used as a conjunction meaning ‘except for, but’ since that would totally inverse the meaning of the non-discrimination guarantee. Thus, the only possibility is of it being used as an adverb here. The question that remains is whether as an adverb it has a quantitative or a qualitative meaning. Does ‘only’ in the phrase ‘on ground only of’ signify ‘solely’, ‘singularly’, ‘uniquely’, ‘merely’, ‘exclusively’ in a qualitative sense such that it could mean that something is the exclusive cause of, or the sole basis of, or form the ground for a particular effect, or is uniquely relevant to a particular result; or the quantitative sense the single quantity one?
As an adverb, the positioning of ‘only’ in a sentence matters as OED indicates: ‘The traditional view is that the adverb only should be placed next to the word or words whose meaning it restricts: I have seen him only once rather than I have only seen him once.’ This explanatory statement is useful. It indicates that although there is free rein in using ‘only’ as a limiting adverb either before or after the object it seeks to limit, it should not be absurd or ambiguous in common usage. In its current positioning in clause (1), the word ‘only’ may qualify the immediately succeeding list of grounds or the term grounds just preceding it. But the fact that it is placed before rather than after ‘of’ in the phrase ‘on grounds only of’ diminishes the possibility of it limiting the list of grounds as such. On the other hand, if ‘only’ was meant to be used as ‘solely’ or ‘merely’ in the sense of limiting the number of grounds upon which a discrimination claim be based, it is clearly misplaced in the phrase ‘on grounds only of’.
A student of English language would then strip the phrase ‘on grounds only of’ of any quantitative sense. She would use ‘only’ as referring to ‘simply’, ‘merely’, ‘exclusively’ or ‘just’ such that it relates to the inadequacy or inappropriateness of certain grounds being invoked as the basis of discrimination. In the legal semantics of discrimination law this would mean that discrimination is prohibited when based on, for the reason of or because of these grounds: religion, race, caste, sex, place of birth (indeed, this is the understanding of discrimination in United States, UK and Canadian anti-discrimination legislation). Thus, the phrase can be taken to signify the basis of discrimination in grounds and does not either indicate a closed list or single-ground claims. In finding the basis of discrimination through ‘on grounds only of’, there is an emphasis on the causative (though the causation doesn’t need to be direct or strict and can be merely correlative as argued by Tarunabh Khaitan in A Theory of Discrimination Law) element in discrimination, i.e. something is discriminatory because it is based on certain grounds. It extends the inquiry into finding not just whether there was discrimination in treatment or in effect but that its basis was in certain kind of prohibited categories of identities.
Fourthly, the misinterpretation and misapplication of ‘on grounds only of’ in clause (1), a fundamental flaw in discrimination jurisprudence is the partial reading of the clause. The case law at no point engages in a complete meaning of the clause which ends with ‘or any of them’. This partial reading strips the prevailing jurisprudence of normative force. Re-interpreting clause (1) while reckoning with its full wherewithal including the phrase ‘or any of them’, stands as a clear indication of clause (1) covering multi-ground discrimination within its ambit.
The placing of ‘or’ in clause (1) is dispositive in this matter: ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth’ or ‘any of them’ indicates that the basis of discrimination can be any of the grounds, alone or in some combination. Once having interpreted ‘on grounds only of’ as finding the basis of discrimination—‘or’ can only logically settle for allowing multiple grounds to be the basis of discrimination. Given that ‘or’ may mean either ‘and/or’ in legal semantics, either construction leads to the recognition of discrimination on more than a single ground under clause (1).
In summary, a legitimate interpretation of ‘on grounds only of’ relates to finding the basis of discrimination in enumerated or analogous grounds by causally linking the discriminatory act or effect to the personal characteristics or group-identities of claimants based on grounds of discrimination.
(Shreya is completing her D.Phil in Law at the University of Oxford.)