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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.