In a judgment handed down today, the Supreme Court held that the de-boarding of a disabled passenger from a Spice Jet airplane was illegal and violated her rights. It also issued some guidelines with respect to the treatment of disabled persons at airports under existing laws and regulations. In addition, constitutional observers might find certain observations in paragraph 39 to be of interest. Justice Sikri notes:
“…equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.”
What is striking about this passage is the complete absence of the language of intention/motive in defining discrimination. As we have discussed extensively on this blog before, the dominant approach (with the odd exception) of the Indian Supreme Court towards equality has been to understand the word “grounds” under Article 15(1) [“The State shall not discriminate on grounds only of…”] as qualifying “the State”, and thereby, holding that discrimination exists only if it can be shown that it was the intention, or purpose, of the law to discriminate. This approach is based upon a belief that discrimination is comprised of a set of conscious, intentional, definable, and individual acts.
This, however, is no longer the model followed in many other jurisdictions. Courts now focus upon the effects of government policy or laws, with the understanding that even seemingly neutral norms have the effect of excluding and subordinating people and groups by virtue of the fact that these norms are part of a non-neutral system of structures and institutions.
The underlined portions of the above excerpt strongly endorse the structural, effects-based model. They shift the emphasis from the reasons or motivations governing the discriminatory action, to the right of the discriminated group to enjoy equal access to public goods. And they also place the focus upon remedying systemic discrimination.
While these remain incidental observations of a two-judge bench, it is important to acknowledge that they provide an alternative approach towards equality under the Constitution, with admirable lucidity and clarity. In that sense, today’s judgment is of significance.