The Leprosy PIL: A Chance to Rethink Equality under Law

Today, the Supreme Court issued notice on a petition filed by the Vidhi Centre for Legal Policy challenging provisions from as many as 119 statutes, which discriminate against people with leprosy. The petition follows the 256th Law Commission Report, which highlighted the discriminatory legal landscape against persons with leprosy, and called for its elimination.

The petition challenges these statutes (that range from election disqualifications to employment discrimination) on the expected grounds of Articles 14, 19 and 21 of the Constitution. I suggest, however, that this case provides, in addition, an opportunity to the Supreme Court to reconsider and evolve its jurisprudence of equality, which has been rather sterile in recent years (and decades). This opportunity exists because leprosy, insofar as it has been a historic site for group-based discrimination, is similar to the prohibited characteristics under Article 15(1) (race, caste, sex etc.), but of course, does not fall within any of them. Consequently, while the equality-based challenge to these discriminatory statutes will have to be made under Article 14, the Court can advance a theory of discrimination that dispenses with the classic intelligible differentia/rational nexus test under Article 14, and applies a higher threshold of scrutiny in circumstances where the ground of discrimination is similar to, but does not fall within, the listed grounds under Article 15(1).

Note that this is not unprecedented. The Delhi High Court did exactly this when it read down Section 377 of the IPC in 2009. The Supreme Court overturned that judgment in 2013, without undertaking any analysis of the High Court’s 14-15 synthesis.

I have written an article that defends this view, and considers its extension to exactly the kinds of laws under challenge in the present petition – i.e., those that discriminate against people with leprosy. The article can be accessed here.

 

 

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3 Comments

Filed under Article 14, Article 15 (general), Equality, Non-discrimination

3 responses to “The Leprosy PIL: A Chance to Rethink Equality under Law

  1. Khagesh Gautam

    In an upcoming article in the Boston University International Law Journal, my co-author and I examine the leprosy problem from a scientific stand point and examine a few laws from article 14 angle. This article dedicated an entire partion to scientific analysis and then applies article 14 jurisprudence to this renewed understanding of this disease and questions the constitutionality of several laws. Research like this, and your work as well, are going to be very helpful in this PIL.

  2. Radhika

    While we try, unsuccessfully, to push more radical meanings to equality judicially, I do wish endeavours that try to do so would also take a democratic route. Your own critiques of PILs have shown how a tool for a more emancipatory writ jurisdiction has been so tremendously undercut by undemocratic actors, as we witnessed in Suresh Kumar Koushal. While the present PIL against so-called anti-leprosy laws might be motivated by progressive ideals of inclusion, I wish it follows a consultative, participatory process that permits organized groups, collectives and movements to represent and articulate themselves- an ethic today’s ‘PIL movement’ seems to lack. To have rights is not only to have laws that agree with you, but also to have political power as citizens.

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