Tag Archives: disparate impact

Round-Up: The Delhi High Court’s Experiments with the Constitution

(This is the second part of three blog posts that round-up some recent judicial pronouncements. For work-related reasons, I did not have the time to write about them when they were delivered. – Ed.)

Benches of the Delhi High Court have issued a series of interesting rulings in the first half of 2018. A summary follows.

Article 14 and Genetic Discrimination

In United India Insurance Company v Jai Parkash Tayal, a single-judge bench of the Delhi High Court invalidated a clause of an insurance contract that excluded “genetic disorders” from the scope of insurance. The judgment proceeded on multiple grounds, and makes for fascinating reading. In particular, Justice Pratibha Singh invalidated the clause on the grounds of Article 14 (equality before law), 21 (right to health), and the impermissibility of changing an insurance contract to the detriment of the insured. The Article 21 issue is not one I will discuss here: as readers of this blog will know, the reading in of broad socio-economic rights into Article 21, and their exceedingly uneven application on a case-to-case basis, is not something I am very comfortable with. This case, like so many others, tells us that there is a right to health, and then uses it to achieve a specific outcome, but somewhere along the way, the precise spelling out of the scope, contours and limits of this right, and the nature of the obligations it places upon the State, is lost by the wayside.

What I find much more interesting, however, is the manner in which the Court used Article 14. In paragraph D1, Justice Singh observed:

Article 14 of the Constitution of India prohibits discrimination of any kind. This would include discrimination based on genetic heritage of an individual.

There is, however, something odd about this framing. Article 14 is the equality clause. The non-discrimination clause is Article 15(1), which prohibits the State from discriminating on grounds of race, religion, caste, sex, and place of origin. Moreover, Article 15(1) is a closed list – unlike certain other Constitutions, no additional, analogous grounds can be brought within its ambit. Article 14, on the other hand, is a general equality clause that has been interpreted by the Courts to exclude irrational classification or arbitrary State action, on a case-to-case basis. Unlike Article 15(1), Article 14 does not – a priori – rule out specific grounds upon which differentiation may be based. The distinction between Articles 14 and 15(1) was expressed by Patanjali Sastri CJ in a classic exposition, in Kathi Raning Rawat v The State of Saurashtra (1952)

As we can see, Justice Singh’s observation that Article 14 prohibits discrimination on the basis of genetic heritage appears to conflate Sastri CJI’s distinction between Articles 14 and 15(1).

In the latter part of the judgment, however, Justice Singh modulates the claim. In the context of insurance contracts, she concedes that there may be a class of narrowly defined cases (to be articulated by the policy-makers) where certain kinds of genetic diseases can be excluded by the insurer. Her specific problem is with the width of this exclusion clause (covering all “genetic disorders”) which – as she states in the operative part of the judgment – violates Article 14. Consequently, Justice Singh’s argument is not that “discrimination” on the basis of genetic characteristics will automatically violate Article 14, but rather, it will presumptively violate Article 14, unless strong reasons can be shown that justify the violation. In other words, differentiation based on genetic differences will be subjected to stricter judicial scrutiny than other classifications.

Is there any constitutional warrant for this reading of Articles 14 and 15? I have recently argued that there is, in a defence of the Delhi High Court’s Naz Foundation judgment (SSRN version here). Briefly, the argument is as follows: an analysis of the Constituent Assembly Debates shows that the framers did not intent Articles 14 and 15 to operate as separate silos. Rather, Article 14 was the general expression of the concrete commitment towards non-discrimination under Article 15(1). The framers took the five most publicly salient grounds at the time – race, religion, caste, sex, place of origin – and prohibited all discrimination involving those grounds. However, the framers also realised that forms and sites of discrimination evolve, and what is not salient today can become salient tomorrow (classic examples: sexual orientation, disability, and age, which are all present in some more recent Constitutional documents). For this reason, the framers included Article 14, whose more open-ended language would allow future Courts to develop new grounds of discrimination, and subject them to stricter scrutiny (something akin to a proportionality standard). Unfortunately, however, this possibility has never seriously been explored by the Courts, who have been caught between the classification and the arbitrariness standards under Article 14. Naz Foundation represented the first serious articulation of this vision of Articles 14 and 15(1). United India Insurance Company is another small, incremental step towards it.

Uncertainties over Horizontality

The Delhi High Court was very clear that Articles 14 and 21 applied to all insurance contracts, whether entered into by a State insurer or a private insurance company. This, however, is a problematic conclusion. Articles 14 and 21 very categorically apply to State action. “State”, under Article 12, is limited to government and entities under the “functional, financial, and administrative” control of government. Without some additional reasoning, a private insurance company cannot be brought within the ambit of the fundamental rights chapter.

The Court’s response was to argue that insurance contracts are unequal (like contracts of adhesion, although the Court did not use the term), and place the insurance applicant at a disadvantage. That is correct – and many jurisdictions recognise that such contracts are of a special kind, that cannot be interpreted in a normal way (see the recent decision of the UK Employment Tribunal involving Uber’s contracts with its drivers). However, the remedies for that are provided within contract law: interpret ambiguous terms in favour of the weaker party, and if the unconscionability is clear, void the contract on grounds of public policy. The Court could even have said – as it came close to doing – that such contracts had a public element, and therefore could be subjected to public law norms (which include norms of non-discrimination). There is no warrant, however, for making Part III of the Constitution directly applicable to private insurance contracts, and to the extent the Court did so, I submit that it erred.

The same issue arose in another Delhi High Court decision that made the news recently, Sanghamitra Acharya v State (NCT) of DelhiSanghamitra Acharya involved the commitment of an adult woman into a mental hospital at the instance of her parents. Justice Muralidhar, writing for the division bench, held that the woman’s rights to liberty, autonomy and dignity had been violated (especially in view of the Puttaswamy judgment), that the parents, police, and the hospital were in breach of their legal obligations, and ordered compensation. This is, of course, impeccable; in the course of the judgment, however, the Court expressly held that Articles 19 and 21 (along with Articles 15(2), 17, and 23) were horizontally applicable between private parties.

It is true that Articles 19 and 21 are not categorically framed as injunctions against the State. Article 19 stipulates that “All citizens shall have the right… to freedom of speech and expression…” and Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Therefore, there is no express textual bar against reading Articles 19 and 21 horizontally. However, the reference to State restrictions under Articles 19(2) to 19(6), and the specific reference to “procedure established by law” under Article 21, strongly indicates that these Articles are meant to apply vertically, between State and individual. This is buttressed by the fact that where the framers did intend the horizontal application of fundamental rights, they were clear and unambiguous about it (Articles 15(2), 17, 23, 24). And lastly, this is how the Courts have almost uniformly understood and interpreted them (there are some exceptions, such as the Aruna Shanbaug judgment). It is, of course, open to the Delhi High Court to hold that this jurisprudence is misguided; however, such a radical change in the interpretation of Articles 19 and 21, it needed to provide strong reasons for that holding, and also to elaborate its own theory justifying the horizontal reading of Articles 19 and 21. With respect, the Court did not do that.

Legal Interpretation in the Shadow of the Constitution

What the Court did do very well, in my opinion, was bring the Constitution to bear upon the interpretation of the Mental Health Act, which was the relevant legislation at issue. The Court was examining whether the “involuntary admission” into a mental hospital was consistent with the scheme of the Act. Under Section 19, a person could be involuntarily admitted into a mental hospital by their relative or friend, if the medical officer in-charge was “satisfied” that it was in the interests of the patient. The Court held that although Section 19 was a “stand-alone” provision, the rights under Article 21 required that the word “satisfaction” be read as “objective satisfaction”; that is, the medical officer would have to follow the legal definition of “unsoundness of mind” (which is narrow and circumscribed) before allowing involuntary admission. On facts, it was found that the medical professional had not even attempted to apply any objective standards in his determination.

The form of interpretation that the Court engaged in here is one that Indian Courts have attempted in the past, but only sporadically: borrowed from German law, it is called “the radiating effect” put broadly, holds that a Constitution is not merely a set of rights, but an objective “order of values”, and these values “radiate” through the legal system. In concrete terms, a Court is to interpret laws – including private law – in a manner that advances and promotes the constitutional order of values. By interpreting “satisfaction” (an ambiguous word) to refer to “objective satisfaction”, and to justify that reading by specifically pegging it to constitutional rights, the Sanghamitra Acharya is an important judgment in the context of the theory of the radiating effect.

Traces of this are visible in two other judgments the Delhi High Court delivered, on the subject of labour law. In Indu Munshi v Union of India, a division bench of the Delhi High Court ordered the regularisation of a batch of Kashmiri Pandit schoolteachers. The schoolteachers had been forced to flee from the Valley in 1993, and had come to Delhi. They had been given contractual jobs as schoolteachers in 1994 – and then kept on contract for the next twenty-four years. The issue of regularisation is a fraught one, and any Court that wishes to order regularisation has to content with the challenge of the Supreme Court’s Constitution Bench judgment in Uma Devi’s Case, which invoked the constitutional right to equality of opportunity to hold that contractual employees who had been appointed by the “back door” could not later be regularised “at the cost of” other employees. Uma Devi’s ratio has, however, been subsequently whittled down (the High Court discussed some of these judgments), and here Justice Bhat, writing on behalf of a Division Bench, held that, on facts, there was no “back door appointment.” One of the crucial features that weighed with Justice Bhat was the fact that the Kashmiri Pandits had arrived as refugees, and were compelled to accept whatever offer of employment was open to them, without any genuine choice or bargaining power. When combined with the fact that the process of appointments was competitive, and that the teachers had worked against regular (unfilled) vacancies for twenty-two years, as well as a number of other technical factors, Justice Bhat held that, notwithstanding Uma Devi, the case for regularisation was unanswerable. The Court also held that the contractual teachers deserved remuneration that was equal to the sanctioned remuneration for regular schoolteachers. It adopted a broad version of the “equal pay for equal work” doctrine (which focused on the nature of work) rather than a narrow version (which made technical factors such as cadres and sources of appointment – which could easily be undermined – determinative), and again, framed the issue as a right against exploitation:

Turning to the issue of equal salary and remuneration, the Govt of NCT of Delhi had argued that the teachers could not question their emoluments, because they had accepted their contractual status and functioned in that capacity for over a decade and a half. The teachers’ argument is that they had practically no choice; the alternative to accepting the job with reduced emoluments was starvation or no employment. Such a Hobson’s choice is not meaningful. This court agrees with the contention and holds that there cannot be any estoppel in such situations, barring claims to parity. Long ago, in Sanjit Roy v State of Rajasthan, AIR 1983 SC 328, the Supreme Court characterized as forced labour the acceptance, under compulsion of circumstances, by a person without employment, remuneration that was lower than the minimum wage and stated “that it may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under the law to receive.”

And:

In the facts of the present cases too, the court is of the opinion that the mere nomenclature of “contract teachers” is an artificial one given to the teachers who approached this court through the writ petitions that have led to these appeals; they were appointed against regular vacancies, their services are unbroken and have not been continued on account of any stay or court directed interim order; their appointments were pursuant to a constitutionally recognized and acceptable procedure of advertisement and calling names from employment exchange; they each held and hold the requisite qualifications, including B.Ed; all of them were interviewed before their appointment. For these reasons, having regard to their unbroken employment for over two decades, in line with the decision in Umadevi (supra) as understood in Pratap Kishore Panda (supra), Malati Dass (supra) and Sheo Narain Nagar (supra), the said Kashmiri migrant teachers are entitled to be treated as regular appointees. They shall also be entitled to provident fund benefit, gratuity and pension upon attaining the age of superannuation. If any of the petitioners or any other Kashmiri migrant teacher has already attained superannuation or has died in the interregnum the Govt of NCT of Delhi shall calculate their entitlement and release them to such retired employees, and in the case of death, release such amounts to the legal representatives of such deceased employees.

Of course, the Constitution was not directly involved in this case, in the sense that there was no legal provision under challenge. However, it is obvious that the Constitution – and especially, its egalitarian and anti-exploitative ethos – permeated each of the choices the judges had to make. Uma Devi had invoked the doctrine of equality of opportunity to set up “regular” and “back door” appointees in conflict with each other, competing for the same scarce public good (jobs). The Delhi High Court rejected this race-to-the-bottom vision of equality and, instead, focused upon an understanding of equality that was sensitive to exploitation and disparities in bargaining power, to hold that Uma Devi was inapplicable to the present case, and furthermore, the the constitutional principle of equal pay for equal work would also apply.

The Constitution was more directly at play in M/s Metrro Waste Handling v Delhi Jal Board, a brief judgment concerning manual scavenging, and bookending its holding by quotes from Dr. B.R. Ambedkar. The Delhi Jal Board issued a tender for mechanised sewer cleaning, where it did two things: first, it stipulated that only one machine would be issued per bidder; and second, it stipulated that preference would be given to the families of deceased manual scavengers and ex-manual scavengers. The first condition – it argued – was to encourage small entrepreneurs and the underprivileged class to apply. The justification for the second is obvious. The Petitioner challenged the first condition as being arbitrary, and the second as imposing a “100 percent reservation”, which was unconstitutional.

The Court rejected both arguments. On the first, it found that the DJB had set up an elaborate system of loans and other forms of aid to genuinely enable underprivileged sections to effectively bid for the tender; the argument from arbitrariness, therefore, was dismissed. From a constitutional point of view, however, the second issue is more interesting. The Court rejected the argument that the DJB’s order of preference was establishing 100 percent reservation. This was not – it observed – a system of “quotas”:

What is in issue, however, in this case is the attempt of the state, uniquely to ensure that the livelihood and lives of sewage workers performing manual scavenging tasks are meaningfully uplifted. The system of preference is not reservation, in any sense of the term. The court recollects what was held in Government of Andhra Pradesh v Vijaykumar1995 (4) SCC 520 that the wording of Art. 15(3) enables “special provisions” is wider than Article 16(4) which enables a special provision by way of reservations. Article 15(3) is wider and includes “positive action programmes in addition to reservations”.

However, if what was involved was not reservation, then the provisions of Articles 16(4) (since it specifically mentions reservation). Nor could 15(3)’s “special provisions” be invoked, since they are limited to women and children. The only alternative, therefore – as the Court noted – was that preferential treatment of underprivileged classes was itself consistent with the guarantee of equality of opportunity under Article 16(1). Or, in other words – as the concurring opinions of Justices Mathew and Krishna Iyer had famously held in NM Thomas, but which were not subsequently developed in detail – the constitutional vision of equality is a substantive vision, which factors in structural and systemic discrimination, and views the overcoming of structural barriers as part of the very meaning of equality. As Justice Bhat – again, writing for a division bench – held:

Seen from the context of the decisions quoted previously, the NIT conditions are not meant to exclude the “general” class of citizens. They afford an opportunity to an utterly marginalized section a “step up” (or to use the expression in Nagaraj (supra), “catch up”) with the other citizens. The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as “a backward section of the Hindu community who were handicapped by the practice of untouchability”). The state, i.e., DJB, in our opinion, had a compelling interest in promoting the welfare of these class of citizens, while conceiving and implementing this system of preferences, in the impugned NIT.

Indirect Discrimination

This provides an ideal segue into the last case: Madhu v Northern RailwayMadhu involved the interpretation of certain Indian Railways rules. The dispute centred around a railway employee taking his wife and daughter “off” his list of “dependents” entitled to free medical treatment, on the ground that he had “disowned” them. The Railways argued that for a person’s dependents to avail of treatment, he had to make a “declaration” that they were part of his family; in this case, since the employee had refused to do so, the Railways was justified in denying them medical treatment. The Division Bench, speaking through Justice Bhat – yet again! – rejected this argument, arguing that not only was such an interpretation textually untenable, but also that accepting it would perpetuate indirect discrimination:

The Northern Railways contends that the Appellants are not denied the medical card because they are women, but rather because their husband and father had not made the requisite declaration. However, this explanation is not enough. It is not sufficient to say that the reasoning of Northern Railways did not intentionally discriminate against the Appellants because they were women. Law does not operate in a vacuum and the reasoning and consequent decision of Northern Railways must be examined in the social context that it operates and the effects that it creates in the real world. Even a facially neutral decision can have disproportionate impact on a constitutionally protected class.

The reason that the drafters of the Constitution included Article 15 and 16 was because women (inter alia) have been subjected to historic discrimination that makes a classification which disproportionately affects them as a class constitutionally untenable. The Northern Railways decision to not grant the Appellants medical cards clearly has such a disproportionate effect. By leaving an essential benefit such as medical services subject to a declaration by the railway officer/servant, the dependents are subject to the whims and fancies of such employee. The large majority of dependents are likely to be women and children, and by insisting that the railway officer/servant makes a declaration, the Railway authorities place these women and children at risk of being denied medical services.

It is irrelevant that the Railways did not deny them the medical card because the Appellants were women, or that it is potentially possible that a male dependent may also be denied benefits under decision made by the Railways. The ultimate effect of its decision has a disparate impact on women by perpetuating the historic denial of agency that women have faced in India, and deny them benefits as dependents.

The concept of indirect discrimination – discussed in some detail on this blog previously – has been incorporated into the jurisprudence of many other constitutional courts (the High Court cited some of them). Indian Courts have taken tentative steps towards it, but Madhu represents perhaps the first full-blooded articulation and defence of indirect discrimination as a form of discrimination prohibited by the Constitution. It will, hopefully, be the first of many instances.
 

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Filed under Ambedkar, Article 12: Meaning of "State", Article 15 (general), Article 21 and the Right to Life, Bodily Integrity, Disparate Impact, Equal Pay for Equal Work, Equality, Horizontal Rights, Labour Law and the Constitution, Meaning of "State", Non-discrimination, Privacy, Regularisation, Reservations/Affirmative Action, Right to Health, Sex Discrimination, Sex Equality

Sex Discrimination and the Constitution – XII: Indirect Discrimination in Sareetha vs Venkatasubbaiah

Before ending our discussion on sex discrimination under the Constitution, it would be interesting to take note of two (overruled) High Court cases that pushed interpretive boundaries in their understanding of Article 15(1). The first is the Delhi High Court’s judgment in Naz Foundation vs NCT of DelhiAs is well-known, the High Court invalidated Section 377 of the IPC, which criminalised “carnal intercourse against the order of nature” (read: homosexuality), on grounds of Articles 14, 15 and 21. One of the things the High Court did was to read “sexual orientation” into the word “sex”. In a guest post last week, Vansh Gupta examined this issue in some detail, so I won’t reiterate the argument in full. Briefly, there are two ways of understanding the Court’s interpretive move. The first – which is what the Court itself seems to say – is that sexual orientation is read into Article 15 as a ground “analogous” to sex. This, I believe, is a mistake, since the text of Article 15(1) makes it clear that the “grounds” stated therein constitute a closed list (compare, e.g., with the anti-discrimination provisions of the South African and Canadian Constitution). However, the other – more acceptable – reading is that the criminalisation of homosexuality constitutes sex discrimination, properly understood. This is because, at its heart, it rests upon the same gender stereotypes (including assumptions about sexual roles) that form the basis of sex discrimination.

Let us now consider the judgment of the Andhra Pradesh High Court in T. Sareetha vs Venkatasubbaiah. The constitutionality of S. 9 of the Hindu Marriage Act, which provides for the “restitution of conjugal rights”, was challenged. According to Section 9, “when either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court for restitution of conjugal rights and the Court, on being satisfied the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.” According to an Explanation, the burden of proving reasonableness lies upon the party who has withdrawn from the society of the other. Under the CPC, a decree under S. 9 may be enforced through attachment of property, or detention in a civil prison.

A full history of this concept would be beyond the scope of this essay. Suffice it to say here that the “restitution of conjugal rights” is a common law doctrine, introduced into India by the British, and the subject of some notorious court battles in the late-19th century, at the dawn of the women’s movement.

The Andhra Pradesh High Court struck down Section 9, primarily on the ground that it violated the right to privacy. The judgment’s conception of privacy is novel and fascinating, and repays close study. What is of particular significance, however, is that towards the end of its judgment, the Court also invalidated the provision on the grounds of Article 14. This seems prima facie counter-intuitive, since Section 9 clearly applies to “the husband or the wife“, and makes no distinction between the two. It is, therefore, facially neutral. The Court observed, however:

“… by making the remedy of restitution of conjugal rights equally available both to wife and husband, it apparently satisfies the equality test. But the requirements of equal protection of laws contained in Article 14 of the Constitution are not met with that apparent though majestic equality at which Anatole France mocked… the question is how this remedy works in life terms.  

In our social reality, this matrimonial remedy is found used almost exclusively by the husband and is rarely resorted to by the wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this fact. The learned author recorded that although the rights and duties which marriage creates may be enforced by either spouse against the other and not exclusively by the husband against the wife; a suit for restitution by the wife is rare”.

The reason for this mainly lies in the fact of the differences between the man and the woman by enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievably whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s future plans of life and prevents her from using that self-destructive remedy. Thus the use of remedy of restitution of conjugal rights in reality becomes partial and one-sided and available only to the husband. The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

There are two important aspects of this analysis. The first is a factual finding that a facially neutral statute has a disproportionate effect upon a certain class (although one would have liked statistical evidence beyond a quotation from Gupte’s Hindu Law in British India!) The technical term for this is “disparate impact”. The second is that the reason for the disparate impact cannot be linked with any constitutionally justifiable purpose. Here, the Court finds that, in light of the deeply unequal familial power structures prevailing within Indian society, a textually neutral legal remedy operates to the severe disadvantage of women. The two findings together constitute the vice of indirect discrimination (in other jurisdictions, a finding of disparate impact shifts the burden upon the discriminator to show that his or her actions could be justified by a legitimate and proportional purpose).

It is important to acknowledge indirect discrimination as a form of constitutionally proscribed discrimination, since statutes and policies are not always consciously designed to exclude groups and classes. As we have seen before, prejudices can be subconscious or unconscious, and entire exclusionary social and economic structures can be erected without the intention of harm anyone. Anuj Garg’s focus on the effect of policies upon protected groups, and the Andhra Pradesh High Court’s factual and normative analysis of Section 9 of the Hindu Marriage Act, together constitute a powerful foundation from which to place indirect discrimination at the heart of the non-discrimination guarantee.

Two things remain to be noted. The first is that T. Sareetha examined indirect discrimination within the context of Article 14, and not Article 15. The logic, however, remains exactly the same, especially when coupled with the effects test under Article 15. Secondly, Sareetha was quickly overruled by the Supreme Court, which warned against bringing constitutional law into the domestic sphere. Whatever the merits of that ruling, Sareetha is no longer good law. However, much like Koushal and Naz on “sex” and “sexual orientation” under , there was no specific finding by the Supreme Court on the issue of indirect discrimination. Neither of these two propositions, therefore, have been expressly rejected by the Court. As such, their normative power and attractiveness makes them ideal candidates to be adopted in some future time.

 

 

 

 

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

Article 15 and Typologies of Discrimination – II: Disparate Impact

To recapitulate our discussion in the last post: disparate impact occurs when policies neutral on their face nonetheless place burdens upon particular groups (e.g., promotion policies dependent upon spending a specific number of days in a year at office have such an impact upon pregnant women). The question is whether Article 15 is attracted in such cases. We have noticed that opinion is divided in other jurisdictions, and the text and structure of Article 15 appears to militate against this conclusion.

Let us now turn to constitutional philosophy. What philosophical reasons exist for arguing against disparate impact generally? It is the Hayekian idea that a violation of liberty must necessarily be specific and intentional to be so. To repeat an example we have examined before on this blog: if someone locks me up in a house, that is a violation of my freedom; however, my inability to fly unaided because of my body structure and the forces of gravity cannot properly be called a violation of freedom – it is a simple inability. Analogising from this, Hayek argues (described here) that the background economic and social structure is much like the forces of gravity and my body structure: if I am too poor to buy a ticket to a movie theatre, that is terribly unfortunate, but it isn’t a violation of my freedom the way it would be is someone physically barred my access to the said theatre even after I had purchased the ticket. Against this, we can place the arguments of G.A. Cohen, for whom the social and economic structure, being State-created and then State-maintained (if I try to get into the theatre without a ticket, the police will physically bar me from doing so) is indeed a violation of freedom. Applying the arguments to disparate impact: let us assume – hypothetically – that because of various economic and social reasons, Dalits are by and large unable to access a good primary education. Correspondingly, they fail to do as well as others on “merit based” college entrance examinations. A Hayekian would argue that this is no discrimination, because the test itself classifies you on your intellectual ability, and the reasons why Dalits cannot make it have nothing to do with the intentions/purposes of the test itself. Readers can construct the opposing argument for themselves.

What about our Constitution? In discussing free speech, we have argued that our Constitution is more Cohen than Hayek, but leave that be for a moment: previously, we have discussed how many aspects of the Indian constitution are transformative in the sense that they seek to replace and transform prior value and ethical systems with different ones altogether. Article 15 is a classic example of this, seeking to transform India from a society in which caste, religion and sex-based discrimination was rife and invidious into one in which such discriminations were entirely invalidated.

But let us think deeper about this. Discriminatory practices did not exist in a vacuum – they were grounded upon a core set of ideas that linked a person’s worth with his birth. Various acts are simply the concrete manifestations of the ideas at play, and it is that that a transformative constitution attacks at its root. In other words, Article 15 doesn’t only seek to legally abolish discriminatory acts and policies – it seeks a transformation of the set of moral, ethical and political values that justified the said discrimination in the first place. But if this is true, then as long as the impact of that value-system continues, the central purpose of Article 15 has not been fulfilled. So suppose that for centuries, Dalits were socially and educationally suppressed because of assumptions about their human worth; because of this, their present social and economic situation is such that an access to good quality primary education is out of reach; and this, in turn, means that they do worse on college entrance examinations. Here, disparate impact is directly traceable to that very set of societal assumptions, policies and practices that Article 15 was seeing to transform out of existence.

Another example may make thing even clearer. Here is an excerpt from a famous article by Joan Williams:

“Western wage labor is premised on an ideal worker with no child care responsibilities. In this system men and women workers are allocated very different roles. Men are raised to believe they have the right and the responsibility to perform as ideal workers. Husbands as a group therefore do far less child care, and earn far more, than their wives. Women are raised with complementary assumptions. They generally feel that they are entitled to the pleasure of spending time with their children while they are small. Moreover, even upon their return to work, the near-universal tendency is to assume that women’s work commitment must be defined to accommodate continuing child-care responsibilities. This gender system results in the impoverishment of women, since it leads mothers systematically to “choose” against performing as ideal workers in order to ensure that their children receive high-quality care. The phenomena that comprise the gender system today are often noted, but the way the system functions as a coherent whole remains largely hidden.'”

Let us, for the purposes of argument, accept the truth of this critique – that is, wage differentials are directly linked to assumptions about the proper role of women in bringing up a family. But it is also a historically-accepted fact that such assumptions were themselves predicated upon assumptions of women’s ability and character that treated them as less worthy or deserving of respect than men – and furthermore, women themselves had no say in the construction of these assumptions.  Now if the purpose of Article 15 is to transform prior values celebrating oppression to new ones founded on equal respect and valid participation and consent, then we must also accept that a more concrete purpose of Article 15 is to replace the existing set of values that viewed the proper role of women as being confined to the home, the kitchen and child-care – because, as a matter of historical fact, these values are predicated on denying women both respect and agency (the fundamental Article 15 ideas). In which case, a disparate impact upon the earnings of men and women that is founded upon those very set of values (as the Williams’ article shows) is not only problematic, but constitutionally problematic.

In this context, President of the Republic of South Africa v Hugo,  decided by the South African Constitutional Court, is a classic example of transformative constitutionalism working in precisely this fashion. To celebrate his inauguration, President Mandela pardoned a number of prisoners, all of whom shared one common characteristic: they were mothers of children under the age of 12. This move was challenged on the grounds of sex-discrimination. President Mandela argued that his act was motivated by concern for the welfare of the children, who were deprived of the care of their mothers at a young age. Over a strong dissent from Kriegler J., the Constitutional Court upheld the pardons for certain reasons that we need not here go into; but what is of singular moment is how the Court dealt with Mandela’s reasoning:

“The generalisation upon which the President relied is a fact which is one of the root causes of women’s inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared… at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”

Readers will note that the argument bears the same structure and form as our discussion above.

What objections may be made to our contention? Now it may be argued that after the Constitution came into being, Article 15 lifted women (and Dalits) to an equal status, and therefore, if presently there is a disparate impact, it must be because of individual choice – an argument the US Seventh Circuit Court of Appeals accepted in EEOC v. Sears. But there are two problems with such a suggestion: first, as we have argued before in this blog, such an approach places the burden of change upon the wrong party; not only are we accepting that a set of oppressive values and practices existed, we are also requiring those subjected to that regime to take it upon themselves to change it once the formal barriers have been removed. That does not seem fair. Secondly, as Akhil Amar argues in the context of the American 19th Amendment that gave women the right to vote, constitutional changes of this sort are not merely prospective and forward-looking – they are also admissions of deep, prior historical wrongs, and a further promise to make amends. And if that is true for Article 15, then one obvious way of making amends is a disparate impact test, that places the burden upon the government to show that its actions, that negatively affect hitherto disadvantaged and wronged groups, are necessarily and appropriately called for in the specific circumstances.

This, then, is my suggestion: Article 15 does apply to disparate impact situations, but in a qualified way: where disparate impact is the result of those lingering prejudices, practices, values and ideas that it was the Article’s purpose to eliminate, a constitutional challenge is called for.

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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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