ICLP Round Table: The Equality Bill 2019 – A Response

Tags

Equality, equality bill, non-discrimination

(In this concluding post in the ICLP Round Table on CLPR’s Draft Equality Bill of 2019, Jayna Kothari responds to the previous posts. Read the discussion here, here, here, and here.)

---

The Equality Bill 2019 is in its early stages of the draft and this conversation with Gautam Bhatia, Sandra Fredman and Malavika Prasad is extremely useful and constructive. These comments raise several important concerns and would be helpful in the improvement of the Bill.

Before responding to the some of the comments to the Bill, I would like to give an overview the background of the Bill. The Bill was conceptualized to take forward the equality guarantees that recent Supreme Court decisions protected, such as the right to recognition of sexual orientation and gender identity. It was also conceptualized because the non-discrimination legislations that we currently have in India are not adequate and do not provide enough remedial measures to address discrimination.

Equality bills have been drafted in the past, especially the effort done by Tarunabh Khaitan in drafting the Anti-Discrimination and Equality Bill 2017. The Equality Bill has also examined in great detail the UK Equality Act 2010 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 of South Africa and has tried to learn and improve on these legislations.

Two of the most difficult tasks were to draft the sections on protected characteristics and how to define ‘discrimination’. In addition to these tasks there have been substantive responses to concerns on contract and informal workers being left out of the sections on discrimination in employment. I will try and address these concerns below:

Protected characteristics: One of the most challenging concerns has been to decide which protected characteristics to include in the Bill and which to not include. The inclusion of ‘socio-economic status’ was a particularly complex characteristic to include and Danieli Evans Peterman’s article on the need for protection on the basis of socio-economic status in discrimination statutes is particularly instructive. Socio-economic status has been defined in the Bill as a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications. Therefore, the definition would imply that it would be only those who are disadvantaged by socio-economic status, and would not be available as a ground for those of a higher socio-economic status to raise the claim of discrimination. However, Sandra Fredman’s suggestion of using the term “socio-economic disadvantage” instead might work better and would make it clear that it is only meant for these who are disadvantaged by socio-economic status. Such a similar concern had been raised in the consultations that CLPR has had on the Bill with stakeholders and this has been raised not only in the context of the protected characteristic of ‘socio-economic status’ but also interestingly in the case of caste and the concern that only persons disadvantaged by a lower caste should be able to use caste as a ground for discrimination. The protected characteristic should not be available to persons of a higher caste to claim discrimination. Hence these concerns would need to be kept in mind while defining all protected characteristics to some extent.

Definition of discrimination:  “Discrimination” has been defined in the Bill to mean any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage, denies reasonable accommodation, promotes negative stereotypes, withholds benefits, opportunities and advantages from any person on one or more protected characteristics. Further, in Chapter II on prohibited conduct, discrimination has been expanded to include not only direct and indirect discrimination, which has been included in previous equality law drafts, but also to include structural discrimination, hate speech, segregation and boycott, harassment and victimization and lynching. Our attempt was to build on Sandra Fredman’s definition of substantive or transformative equality and its four dimensional framework, to include many more facets. Disability jurisprudence shows us how denial of reasonable accommodation amounts to discrimination. Caste related experiences of discrimination manifest in segregation, exclusion, boycott and lynching and gender based forms of discrimination often manifest in harassment and victimization and all of these forms often results in structural discrimination at a larger level. The Bill has attempted to include all these experiences to strengthen the understanding and definition of discrimination. The inclusion of hate speech as a form of discrimination is particularly challenging and we are still grappling with an appropriate definition which does not curtail the freedom of speech and expression.

Employment and Workplace Discrimination: The comments from both Sandra Fredman and Malavika on the inclusion of informal workers are extremely useful and the Bill needs to address this concern.  The definition of “employer” in the Bill was meant to be wide enough to include not only employers in the formal sector but also those in charge of informal employment or unorganized work sector such as domestic work. The suggestion to specifically include contract workers and employers who engage contract or temporary workers could be made more clear and specific. It is also true the definitions in the Bill might not include self-employed workers such as Uber drivers or other such persons engaged in app based employment and who are discriminated against by clients or customers. The Bill needs to provide for such inclusion within its employment related guarantees. The challenge of including people engaged in other forms of livelihood such as hawkers, vendors, artisans etc. can also be addressed perhaps by expanding the definitions of places of public accommodation and to include discrimination faced by vendors from customers or the State authorities.

The comments received on the Equality Bill have been extremely important and we hope that these conversations continue. We welcome inputs and feedback on the Equality Bill draft and invite more readers to engage with the text. All of this will help in not only improving the draft but also in pushing for the Bill to become law soon.

---

(The writer is a senior advocate.)

ICLP Round Table – The Equality Bill 2019: On the Equality Courts

Tags

discrimination, Equality, equality bill, equality courts

(This is the fourth piece in our ICLP Round Table on CLPR’s Draft Equality Bill. This post is by Anmol Jain.)

---

This article concerns Part V of the Draft CLPR’s Equality Bill, 2019, which deals with the constitution of district-level equality courts to enforce the non-discrimination rights envisaged under the Bill. I attempt to lay down a background for appreciating the constitution of equality courts and their desired manner of functioning.  

The Idea of Equality Courts and the Need to Establish Them

The Constitution guarantees several civil, political and socio-economic rights including the right to equality and the right against discrimination. When violated, the Supreme Court and the jurisdictional High Court have been empowered to take necessary actions. A question then arises that why we need another judicial forum in the form of equality courts. The answer is simple: ‘the constitutional courts are not approachable, affordable and accessible for a large part of the Indian masses.’ A geographically vast country like India has only one Supreme Court with no regional benches, and many States and Union Territories sharing High Courts (especially in the Northeast) among themselves. For instance, if one’s rights guaranteed under the Constitution are violated in the Andaman and Nicobar Islands, the remedy lies more than 1000 km away in Kolkata. The hefty fees of the lawyers in the High courts seems realistically unaffordable for a (severely) economically unequal citizenry that remains illiterate with the functioning of the courts.

For a true constitutional win, the State must take the courts closer to the public. South Africa, a country with a similar history as ours but in the form of Apartheid, aimed to realize this goal by constituting equality courts under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. India is already on the path of creating such courts and one of its first kind can be perceived under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which creates Special Courts and Exclusive Special Courts to address the acts of discrimination having their locus in the caste of the victim. Similarly, the Transgender Persons (Protection of Rights) Bill, 2019, if passed, would be another statute providing sanctions under a positive law for the violation of the right to non-discrimination. This is a partial success as Article 15 prohibits discrimination on the grounds of religion, race and place of birth, apart from caste and sex.    

Studied in this background, one cannot but appreciate the relevance of Chapter V of the CLPR’s Equality Bill, 2019, which provides for the constitution of equality courts. Equality courts, functioning at the District level, shall bring constitutional adjudication closer to the public and fulfil the dreams of attaining true equality. They might act as the necessary catalyst towards the fulfilment of our constitutional promises.

One of the most important reasons for their success could be the rich constitutional common law that the Supreme Court and the High courts have created since 1950, which shall help the equality courts in uniform functioning. The constitutional courts could be seen as driving the Constitution towards transformational successes by valuing individual rights with a proper balancing with the collective security of the society. The richness of rights’ interpretation in India can be best captured by a recent decision of the Madras High Court, wherein the court held a marriage between a man and a trans-woman as valid. Moreover, the manner in which the DPSPs have now been perceived as the means for achieving the goals of Part III unlike the initial years when they were considered as secondary to Part III shall guide the Equality courts in the proper enforcement of the constitutional promises.

The Desired Functioning of the Equality Courts

The arguments in this part are made after a study of the equality courts functioning in South Africa, which can provide us with the necessary guidance about how things can go wrong or remain bad if not properly implemented.

Proponents of Legal Realism argue that ‘judges determine the outcome of a lawsuit before deciding whether the conclusion is, in fact, based on an established legal principle.’ Jerome Frank has noted that the decision reached by a judge is not based on the systematic understanding of the facts applied to the law, but on ‘judicial hunch’ or the ‘intuitive sense of what is right or wrong in the particular case.’ These intuitive results are largely determined through the socio-economic background, political inclinations, cultural understanding, personal experiences and individual characteristics of the judge. It has been argued that “since the ‘rules’ allow the judge considerable free play, he or she can in fact decide the case in a variety of ways, and the way that is in fact adopted will be more of a function of such factors as the judge’s psychological temperament, social class and values than of anything written down and called rules.”

There have been instances of judges forwarding their personal notions in the equality courts of South Africa. In one instance, a judge belonging to the dominant class imposed a restriction on the rights of the blacks to sing their struggle song by employing questionable reasoning. Even in India, we have seen that in the late 1990s, the Supreme Court delivered a number of judgments expounding on the philosophy of Hindutva, while allowing political speeches and pamphlets grossly asking for votes based on religious lines. More recently, we have seen Justice Sen of the Meghalaya High Court and Justice Chitambaresh of the Kerala High Court, speaking through religiously coloured words. This depicts how discriminatory tendencies remains embedded in the judiciary, which dangerously ‘continues to favour the socially and economically dominant members of the society.’  

For successful functioning of the equality courts, it is necessary to secure the judges from being dominated by their discriminatory ideologies. They are one of the most important elements responsible for the success or failure of a justice system as they speak for the courts and their actions determine the level of confidence public shares for the entire institution. If we want people to approach the equality courts, we must first ensure that the Judges are well trained and properly sensitized to handle the matters of discrimination. Therefore, Clause 4 of Section 24 of the Equality Bill, which states that ‘Every judge presiding over a designated Equality Court shall receive a prior training on this Act, in the manner as may be prescribed under the Rules’, becomes extremely important and practically significant.

Apart from judicial sensitization, the Government would also need to ensure that the public is adequately aware of the equality courts and that they are accessible in terms of finances and judicial process. It is disheartening to see that the Government has decreased the Budget for the law and justice and has only earmarked one crore rupees for the advancement of transgender persons under the Transgender Persons Bill. Unless proper awareness campaigns are organized to educate people about their rights under the Bill and the judicial process required to be followed for their enforcement, the equality courts might end-up being just another theoretical attraction.

The courts could be based on the South African model, which has tried best to remove the barriers faced by public while approaching a court. It has made the courts to function in an informal manner, with case filing being nearly inexpensive for litigants and has provisioned for equality clerks as a guide for the litigation. We must ensure that the courts ‘operate with innovative and creative procedural and evidentiary rules that aim to maximise access to justice for victims of discrimination.’

Another important task for the Government shall be to ensure that the poor and underprivileged people have regular access to the courts. It has been noted by the South African Human Rights Commission that: “Equality Courts are not being utilized by the poor and vulnerable.” Majority of the complaints are filed by the dominant class people, who hire best lawyers ‘to overpower the undereducated complainants.’ Unless these deficits are overcome in our system, we might fail to achieve the noble aims of the Equality Bill.

Concluding Remarks

The demand for a comprehensive anti-discrimination law is long pending and multiple attempts have been in the past. The reason is simple: it enlists the equality aspirations and non-discrimination responsibilities of the people in a specific and explicit manner, unlike the Constitution that has provided us with the overarching principles. The central stage is always afforded to the implementing body, which ensures that the statutory promises and objectives are fulfilled in their best essence. The constitution of equality courts shall fulfil such purpose and shall help us in achieving the constitutional promise in a more effective manner through forums closer to the public. Once properly sensitized, the equality courts shall bring with themselves the people-friendly and innovative tools for addressing individual actions of discrimination and might possess the possibilities of meeting the transformational goal of the Constitution.  

Quoting from Narnia Bohler-Muller’s work: “the creation of the Equality Courts in South Africa presents us with numerous possibilities. They do not depict in and of themselves the end of oppression but they do provide us with the hope for the future.” Hoping the same for our mature democracy, we must now endeavour to shift the constitutional adjudication at the ground level.

ICLP Round Table: The Equality Bill 2019 – Comparative Perspectives

Tags

comparative constitutional law, Equality

(This is a guest essay, authored by Professor Sandra Fredman, who is Rhodes Professor of Law at the University of Oxford. It is the third essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first two essays are available here and here).

---

India is unusual in that the provisions guaranteeing equality in the Constitution have not yet been supplemented by comprehensive anti-discrimination legislation comparable to that in other jurisdictions, such as the US, South Africa or the UK. Anti-discrimination legislation plays an important role in giving specific content to constitutional guarantees. It can also bind individuals and corporations, thus extending the reach of the right to equality beyond the State into key sites of discrimination, such as employment, housing, education, healthcare and goods and services available to the public.  The proposed Equality Bill drafted by Jayna Kothari and her colleagues at the Centre for Law and Policy Research is thus very much to be welcomed and she and her team deserve to be congratulated on the quality and reach of the proposal. This post takes a comparative perspective on the Bill, while of course being sensitive to the very different context in which the new legislation will function.

There are many aspects of the Bill that demonstrate positive advances on relevant comparators, such as the UK Equality Act 2010 (EA) and EU legislation. This is particularly so for the definition of direct discrimination. Direct discrimination has traditionally been defined as occurring when a person is treated less favourably than another due to a protected characteristic. The need for a similarly situated comparator, however, has raised complex issues both in principle, because it requires conformity with a dominant norm as a gateway to equal treatment, and in practice, where the choice of comparator can be contested. This has most saliently occurred in relation to pregnancy, with the sad spectacle of tribunals and courts in earlier decades refusing to accord pregnant women the same treatment as men because there is no appropriate male comparator. The EA addressed this problem by replacing the requirement for a comparator with the simple need for detrimental treatment. But this only applies in relation to pregnancy (and disability in limited circumstances), The Indian Bill takes a step further and gives both possibilities in the alternative, available for all protected characteristics, not just pregnancy.

The Bill is also important in that it aims to address structural discrimination in various forms. While the EA addresses such discrimination solely through indirect discrimination, which focuses on the effects of apparently neutral practices, provisions or criteria, the Bill also includes a provision expressly defining ‘systemic or structural discrimination,’ defined as hidden or overt patterns of institutional behaviour, cultural traditions and social norms that discrimination against individuals with protected characteristics. The Bill’s definition of indirect discrimination, is however, interesting in that it does not include the usual justification defence for respondents, permitting the latter to demonstrate that the provision is proportionate to a legitimate aim (such as a requirement for a relevant qualification which might be necessary for a job even though it excludes a disproportionate number of people with a protected characteristic). 

The Bill is impressive too in the wide range of characteristics which it classifies as protected against discrimination. Although many of the listed characteristic can be found in international or regional sources, the Bill contains several important additions, including linguistic identity, migration, refugee status, occupation and food preference. The Bill also transcends the straight-jacket of the Constitutional equality provisions, which only list a set number of protected characteristics. Instead, its list is non-exhaustive, including a provision by which analogous grounds can be included if they fit the principles in the Bill. In addition, the Bill makes express provision for addressing intersectional discrimination. Notably, the Bill includes socio-economic status as a protected characteristic. While this is a welcome move, this formulation runs the risk of protecting the stronger as well as the weaker sections of society. This might open the way to claims by advantaged persons that provisions such as higher taxes for wealthier persons might be challenged as discriminatory on grounds of socio-economic status. The drafters might instead want to use an expressly asymmetric term such as socio-economic disadvantage.

One aspect of the  Bill which might also need further attention concerns the scope of the protection for workers. Given that over 80% of employed persons in India earn their living in the informal sector in India,  dwarfing the formal sector in magnitude, a key initial question is the extent to which non-standard workers are protected. This is a highly challenging issue, and there are few modern positive precedents for its resolution. In particular, most labour law systems confine eligibility for employment protection to workers working under a contract of employment, excluding self-employed, non-standard workers. Discrimination law in the UK extends to some self-employed workers, provided they work under a contract to provide a personal service; but this too has opened up a large number of loopholes for those attempting to sidestep their obligations.

The Bill certainly takes important steps towards inclusion of non-standard workers, such as including employment agencies in the prohibition on discrimination, and mentioning domestic workers in the definition of employer. However, the way in which ‘employee’ is defined might still exclude some of the most vulnerable workers outside of the formal sector. ‘Employee’ is defined as any person ‘employed on wages in any establishment, factory, company or shop.’ An Uber driver who is discriminated against because he is Muslim, a woman agricultural worker  who is sexually harassed, or an own-account worker who is paid less because of race, caste or migration status, might find it difficult to bring themselves within this definition. One way forward is to provide separate protection for self-employed workers who are discriminated against by clients or customers, similar to the protection for consumers or users of public accommodations. Another is to replace the use of ‘wages’ with earnings, and give less emphasis to the workplace as the site of work.  Also of importance is to bring the provisions for equal pay for work of equal value in the Equal Remuneration Act into closer alliance with the Bill.

The Bill is also noteworthy in its inclusion of proactive duties, closely resembling the  ‘fourth generation’ equality duties found in the EA. Such duties are important in their recognition that individual complaints of discrimination will never be sufficient to address the structural causes of discrimination. Proactive duties on the part of the State are crucial in discerning and changing such systemic patterns, as well as taking the burden off individual complainants. The Public Sector Equality Duty in the Bill tracks closely onto its UK equivalent by requiring all appropriate authorities to ‘have due regard to the need to’ eliminate prohibited conduct under the Act, remove or minimize disadvantage, and encourage participation. It goes somewhat further than the EA in that due regard should also be had to taking steps to meet the need of persons with protected characteristics. However, given the extent to which the ‘due regard’ standard under the EA has become little more than a ‘tick-box’ procedure, the drafters might consider strengthening the requirement. For example, rather than requiring authorities to ‘have due regard’ to the need to eliminate prohibited conduct, the drafters might consider requiring authorities actually to eliminate such conduct, which is prohibited in any event. Similarly, rather than imposing a duty to have due regard to the need to take steps, they  might think of imposing a duty to actually take the steps.  Nor would this be pushing the boundaries too far, given that the previous clause requires the State to take measures to promote equality.

Even more welcome would be the inclusion of a duty to have regard to the need to reduce economic inequalities. A similar duty was inserted into section of the EA, which required public authorities, when exercising strategic functions, to have regard to the desirability of reducing socio-economic inequalities. Despite being a very mild obligation, this provision has never been brought into effect, despite remaining on the statute book, so that there is no experience of its workings. For the Indian Bill, it would not be too large a step to include such a duty, given the emphasis in the preamble on eradication of socio-economic inequalities, and the inclusion of socio-economic status in the list of protected grounds. Consideration might even be given to strengthening the obligation.

All in all, this is a very welcome intervention, and it is to be hoped that it will soon find its way onto the statute books.

ICLP Round Table: The Equality Bill, 2019 – On Recognition, Redistribution, and Self-Respect

Tags

Equality, round-table

(This is a guest essay, authored by Malavika Prasad. It is the second essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first essay is available here.)

---

The Draft Equality Bill creates two categories of protections. First, it stipulates that discrimination of various kinds shall be forbidden, in chapter III, and in sections 3, 16(a), 16(b) and 19 as will the acts of hate speech, harassment, segregation, boycott, lynching and victimization, in sections 5-9. These prohibitions envision equality as a floor, below which any treatment shall be prevented, prohibited and protected against. Second, it stipulates that equality shall be promoted by way of diversification, equality plans, codes of practice, reasonable accommodations, measures for the advancement of persons disadvantaged by any of the protected characteristics, etc. in sections 15, 18, 20, 21, 22, 4 read with 17, and so on. These protections envision equality as equal access or equal opportunity above the floor of non-discriminatory treatment. These measures are intended at leveling the playing field between persons disadvantaged by a protected characteristic and those privileged by them. 

The two categories of protections are broadly of the nature of ensuring “recognition” consonant with the aims of the Bill which are not only to prohibit, prevent, and protect against discrimination, but also aimed at promoting equality. Towards this end, the protected characteristics cover a range of historical and contemporary, structural axes of inequality from “caste, race, ethnicity, descent, sex, sexual orientation, gender identity, gender expression, tribe, nationality, disability, marital status, pregnancy, health (including HIV / AIDS status), political opinion and belief, linguistic identity, place of birth, age, migration, religion, refugee status, food preference”. The central underlying character of these “protected characteristics” is captured in section 2(jj)(ii) (which defines the kinds of protected characteristics that can be notified by an Equality Commission in future) as: “…where discrimination based on such characteristic or identity causes or perpetuates systemic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person’s rights.” 


In this list of protected characteristics also figures “socio-economic status”, ostensibly aimed at the “eradication of socio-economic inequalities”. “Socio-economic status” is defined in the Bill as “a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications.” In this post, I will try to understand this concern of the Bill.­ I argue that the protected characteristic of “socio-economic status” is fundamentally different from other protected characteristics in the Bill. If the Bill seeks to promote distributive equality, then it needs to do more than prohibit discrimination and promote equality in the ways described.

Distributive equality

The two categories of protections for “recognition” in the Bill – prohibiting discriminatory treatment below a floor, and mandating measures for equalizing opportunity above the floor – are best suited to secure and realise basic equal opportunities to persons facing caste, gender, disability or and similar structural inequality. However, we find that a person who is protected against discrimination and empowered with the equal access to opportunities to access schooling, work and housing, could still end up at a vastly unequal position compared with the socio-economically best off, despite comparable levels of effort and talent. How should an equality law account for this inequality of outcome?

Theories of distributive justice such as that of John Rawls are only comfortable with inequalities of outcome that result from varying given talents of different people who otherwise enjoyed equal liberties and opportunities. The pre-conditions for political and economic institutions are equal basic liberties (1) and fair equality of opportunity (2a). Under such conditions, since that the given talents of people vary, any resulting socio-economic inequality is justifiable by the “difference principle” (2b): the advantages of the best off must work to the benefit of the worst off.

However, in Indian society (and indeed in any real society) given the structural axes of inequality such as caste (/race/ethnicity), gender, disability, both of Rawls’ preconditions are seldom if ever met. When equal basic liberties and equality of opportunity are a mirage, an equality law must set about first guaranteeing basic equal liberties (1) and equality of opportunity (2a) on structural axes of inequality, before actualizing the difference principle (2b) for distributive inequality. So long as we have not perfected the conditions of equal liberties and equal opportunities, the difference principle cannot justify inequality of outcomes, as it results from unequal access to opportunities and unequal basic liberties.  

If this is the kind of outcome-inequality the Bill intends to eradicate through the protected characteristic of “socioeconomic status” due to “low income”, “homelessness”, “poverty”, then two conclusions follow. First, inequality on solely economic grounds such as “low income” cannot be protected against. If the setback faced by a person is solely economic in nature, then the two categories of protection based in “recognition” are not capable of eradicating the economic disadvantage. “Recognition” based protections are more suited to eradicate inequalities in which the “social” component compounds the economic. In similar vein, even poverty and homelessness cannot be read as merely “economic” setbacks. If inequality due to solely economic conditions such as low income are sought to be remedied by this Bill, further clarity is needed on how it will tackle class-barriers to equal access and opportunity, as Gautam Bhatia points out in his post here.

Second, for eradicating socioeconomic inequality, the two categories of protections in the Bill are not enough. In addition to protections in the realm of “recognition”, the Bill must also stipulate protections of “redistribution”, these protections being interdependent on each other for successfully realizing equality (Nancy Fraser). Such redistribution cannot be a mere “floor of protection against the worst outcomes” with the aim of realizing a basic “sufficient” minimum, but ought also to envision a ceiling on the kind of material inequality that can possibly exist. (Samuel Moyn, Not Enough (2018)). B R Ambedkar’s Draft Articles on States and Minorities, 1945 are instructive on what such reinforcing protections of recognition and redistribution might look like, while also envisioning a ceiling on inequality.

Such measures might fall within the duty of the State to promote equality under Section 15(1), the duty to have “due regard to the need to take steps to meet the needs of persons with protected characteristics” under Section 16(b), or the duty to make reasonable accommodation under Section 22. However, these provisions do not capture the distinct nature of redistributive measures necessary for ensuring redistribution alongside recognition, in the absence of which courts – lacking ‘the power of sword and purse’ – will be ill-equipped to order such remedies.

Self-respect

Even remedying distributive inequality and structural inequality as mutually reinforcing forces is not enough, as Gopal Guru writes in Liberal Democracy in India and the Dalit Critique in assessing equality protections from the perspective of Dalits. In his words, “a more comprehensive assessment…. [needs] discussion of the language of self-esteem and self-respect.” Self-esteem is understood in terms of individual achievement and social ranking in institutions, while self-respect is understood as affirmative attitude one holds of oneself. Guru argues that the measures aimed at promoting equality in the Indian democratic framework enable gaining self-esteem but at the cost of one’s self-respect.

Drawing from Guru’s analysis, I worry that the categories of “recognition” based protections do not create opportunities for persons who are socio-economically disadvantaged to realise and enhance self-respect. Consider the diversification mandate in section 18 of the Bill. While it creates and sustains the background conditions for achieving self-esteem, such achievement comes at the cost of self-respect, as entry into and existence in such institutions under the diversification mandate, will be on the terms of the patrons – likely from dominant groups – who run the organization or institution in question. Guru argues that the need of Dalits to be considered on the terms of patrons is a constraint that permits a struggle only for relative worth, and not of equal worth. Moreover, it appears that section 18’s requirement would stand fulfilled by merely populating institutions with diverse identities, even if the institution is ‘ethically impoverished’ by erasure of the inclusive and egalitarian ideals behind diversification. In Guru’s words “… the idea of democracy or social justice or dignity, which forms the basis of modern public institutions, is reduced to Dalit identity…Thus ideas are compressed into identity.” Such institutions that are seen as embodying merely identities but not the egalitarian and inclusive ideas of diversity cease to hold public respect, Guru cautions. A similar outcome could result from diversification efforts even for persons from other protected groups. This results in further loss of self-respect.

The preambl­e of the Bill mentions the need to affirm human dignity in ensuring equality. While prohibitions on insulation and stereotyping of workers based on protected characteristics have been made in Section 10(1)(b) and (c) (which affirm human dignity), the Bill does not create affirmative duties towards enhancing dignity and self-respect of persons disadvantaged by a protected characteristic. Towards bridging this gap, granular duties tailor-made to each specific site of inequality, to undertake diversification or measures for the advancement of persons disadvantaged by protected characteristics in a self-respect enhancing manner ought to be made. Further, the Bill ought to stipulate the procedure by which these obligations will be discharged, which itself ought to be affirming of the dignity and self-respect of persons in question.  For instance, duties and procedure must be laid down to honor the right of all persons disadvantaged by a protected characteristic, to meaningfully participate and be consulted on their evolving needs and requirements, accounting for their likely disparate bargaining power, in the undertaking of reasonable accommodation measures, with a possible guarantee of a minimum core support.

While awaiting a distributively just utopia…

While we await the realization of a utopian distributive equality, it is imperative to reckon with the sites of work that individuals (particularly those disadvantaged by socio-economic status) are likely to be reliant on, that are not protected by the Bill. The Bill protects individuals in the site of “employment”, in which “employer” is defined in section 2(o), across a spectrum covering (i) the head of an “department, organization, undertaking, establishment, 
enterprise, institution, office, branch or unit of the appropriate Government”, or (ii) in workplaces not covered in (i) the entity exercising any degree of supervision or control, or (iii) in workplaces not covered in (i) and (ii), the person discharging contractual obligations with respect to his or her employees; and (iv) the person or household benefiting from the work of a domestic worker. While this definition includes some kinds of atypical workers such those hired on contract terms, outsourced employees, and workers in the unorganized sector, it is unclear how this definition will apply to workers in the gig economy, as well as workers hired on casual, wage labour. Furthermore, atypical sites of livelihood such as those of self-employed hawkers, vendors, artisans stand excluded from the “work” based protections of the Bill, although they stand to face discrimination at the hands of the “everyday state” (a term borrowed from Anindita Mukherjee, Legal Right to Housing (2019) Cambridge University Press) such as a zoning or municipal authority. The avenues to realize socioeconomic wellbeing are increasingly outside of the typical sites of work and must also be included within the Bill as sites of discrimination, where equality must be promoted.

ICLP Round Table: The Equality Bill, 2019

Tags

Equality

In July 2019, the Centre for Law and Policy Research [“CLPR”] published The Equality Bill, 2019 [“Equality Bill”]. The Equality Bill is the latest in a series of recent efforts by scholars, members of civil society, and MPs to frame civil rights legislation for India. It also comes at an important time: the Supreme Court’s judgments in September 2018, decriminalising same-sex relations, decriminalising adultery, and striking down the ban upon women’s entry into the Sabarimala temple, saw notable advances in Indian equality and anti-discrimination jurisprudence after a long and stagnant period. It is therefore important to take stock and assess the possibilities for the future of equality and non-discrimination law in India. To this end, the Indian Constitutional Law and Philosophy Blog will host a round-table on some of the salient features of CLPR’s Equality Bill.

In this opening post, I will summarise some of the key features of the Bill, and provide a few brief comments. The scope of the Bill can be best understood by asking the following questions: (1) what actions does it cover (how does it operate)? (2) what spaces, institutions or relationships does it cover (or, in other words, where does it operate)? (3) whom does it cover (or protect)? (4) how does it seek to actualise that protection.

On the first issue, the Equality Bill prohibits discrimination, boycott, harassment, victimisation, hate speech, and lynching. Within “discrimination”, the Bill defines – and prohibits – both direct and indirect discrimination, intersectional discrimination, and structural discrimination (inter alia). On this, three brief comments. First, despite recent advances, intersectional and structural discrimination are concepts that are still largely unexplored within Indian constitutional jurisprudence. In implementing the provisions of the Bill, therefore, State authorities as well as Courts will have almost no jurisprudential guidance to draw upon. For this reason, the Bill itself will probably need to contain substantive interpretive guidance, in the form of multiple illustrations and examples (for example, an illustration of structural discrimination might be skewed caste representation in newsrooms, to take a topic recently under debate). Secondly, it is very interesting to note that the prohibition of hate speech finds a place in this chapter. The understanding of hate speech as an equality issue – i.e., as undermining principles of equal concern and respect for all members of society – as opposed to an issue about sentiments, is crucial. It follows the South African approach under its Equality Act, the jurisprudence of the Canadian Supreme Court, and also, the Indian Supreme Court’s observations in Pravasi Bhalai Sangathan, which have not yet been followed up. And thirdly, the anti-boycott provision is of crucial importance, as it recognises one of our most pernicious social realities. Anti-boycott provisions have a long history going back (at least) to 1922 (and were most recently enacted into law in Maharashtra’s Social Boycotts Act. This is also a place where interpretive guidance will be crucial (drawing from, perhaps, the detailed anti-boycott provisions referred to above), as the social boycott can take many different forms, some of which are not immediately visible as boycotts.

On the second issue, certain provisions of the Bill are made applicable to employment, education, public buildings and public places, healthcare, and housing and land. One question that arises on reading this section is how the housing guarantees will be reconciled with the judgment of the Supreme Court in Zoroastrian Co-Operative, which – effectively – upheld the rights of cooperative societies to enforce restrictive covenants (it is an open question whether the Equality Bill legislatively overturns Zoroastrian Co-Operative, by removing its foundations). A second question arises from the fact that one of the “protected characteristics” under the Bill is that of “socio-economic status.” Now, the Bill also stipulates that educational institutions may not discriminate on questions of admission, based on protected characteristics (there is an analogous provision with respect to healthcare). Can a student who is unable to take admission in a school because of high fees claim discrimination on the basis of “socio-economic status”? Questions of compatibility with the Right to Education Act aside, it is unlikely that Courts will read the Equality Bill as having such a far-reaching effect upon economic structure. Some clarity may therefore be needed on the question of whether, how, and to what extent the Equality Bill aims to address disparities in access to important goods that are determined by class barriers. Lastly, it is particularly important to note that via the definition clause, the employment relationship includes domestic workers working in a household. By bringing households and domestic workers into the ambit of the Bill, the traditional public/private divide and the exclusion of constitutional norms from the space of the household is challenged; and there is, correspondingly, the recognition of domestic labour qua labour, and domestic workers as rights-bearers.

On the third issue, a significant part of the work is done by the term “protected characteristics”, defined under Section 2(jj) of the Bill. The list of characteristics is comprehensive, but some further thought might need to be paid about how these definitions will interact with other parts of the Bill. For example, Section 2(jj) correctly states that “political opinion and belief” is a protected characteristic. However, political boycott (as opposed to social or cultural boycott) has long been an integral part of civil rights movements, including in India. Naturally, the Bill would not intend to prohibit the kind of boycott movements that India spearheaded against apartheid South Africa, for example.

Lastly, on the question of implementation, the Bill envisages an Equality Commission and Equality Courts, working in tandem. This is, by now, a familiar legislative remedy, whose positives and negatives are well-known.

In conclusion, a final, overall comment: the extension of equality and non-discrimination norms into the traditional “private sphere” brings with it a host of complicated issues, including issues around balancing rights. Section 3 of the Bill, for examples, bars discrimination by “any person” on the basis of protected characteristics; this, of course, raises the issue of the clash between freedom of belief, expression and association (of the discriminator) versus the rights of individuals not to be discriminated against. Obviously, the prohibition of non-discrimination cannot apply to every individual act (and the Bill itself recognises this by placing limits upon the application of non-discrimination norms in specific contexts such as that of the workplace) – that would both be a violation of personal autonomy, as well as practically unimplementable. It is an open question whether the Bill itself should provide guidance to the Courts on the principles that should be applied to reconcile competing rights; or, in other words, should the Bill itself express an overall philosophy about the limits of “private autonomy” and the private sphere when it comes to equality and non-discrimination? Indeed, the Bill’s focus on “systemic or structural discrimination” gives us one indication: structural discrimination occurs when seemingly private acts have lost their “private” character by virtue of becoming constituent parts of a “pattern of institutional behaviour” (for example, caste discrimination). If, therefore, we read the Equality Bill through this “institutional lens”, it may provide us with a valuable framework within which to reconcile the issues that will inevitably arise once we get to the stage of implementation.

The Karnataka High Court’s Troubling Decision on the Right to Education Act

Tags

educational institutions, Equality, Right to Education

On 31 May, a division bench of the Karnataka High Court handed down its judgment in RTE Students and Parents’ Association v State of Karnataka, upholding the constitutional validity of Rule 4 of the Karnataka Right of Children to Free and Compulsory Education Rules of 2012. The background is this: Section 12(1)(c) of the Right to Education Act requires private schools to admit – to the extent of 25% of the strength of their Class I batches – students belonging to “the weaker sections and disadvantaged groups in the neighbourhood.” The money spent on these children would be reimbursed to the private schools by the government. Rule 12 of the Karnataka Rules – secondary legislation under the RTE Act – stated that “provided that no unaided school falling under such clause (iv) of clause (n) of Section 2 [i.e., of the RTE Act] shall be identified for the purpose of admission of disadvantaged group or weaker section, where government school and aided schools are available within the neighbourhood.” The effect of this rule, therefore, was that the obligation under S. 12(1)(c) would not apply to private schools in cases where there existed government or aided schools in the neighbourhood. Or, in other words, children from disadvantaged sections would no longer be able to seek admission in private schools under the aegis of s. 12(1)(c) if there existed a government or aided school in their neighbourhood.

The constitutionality of Rule 4 – as flagged above – was challenge, and the High Court rejected the challenge. The case of the petitioners was primarily based on the contention that the vast quality gap between government and private schools essentially consigned socially and economically disadvantaged students to a second-class education, and deprived them of an equal opportunity to exercise their right to education under Article 21A of the Constitution. On the other hand, the State argued that the effect of the RTE had been a gradual closing down of state schools and a proliferation of private schools, apart from a heavy burden on the public exchequer spent on reimbursing private schools. As far as statutory interpretation went, the State argued that under Section 6 of the Right to Education Act, the State was under an obligation to establish – within three years – public schools in every neighbourhood. It was therefore argued that on a combined reading of Sections 6 and 12(1)(c), the 25% obligation on private schools was a “transitory” one, until such time that government schools were established in the neighbourhood. Consequently, Rule 4 – which effectively provided that when a government school was established, the requirements of S. 12(1)(c) no longer applied – was valid.

Accepting the argument, the High Court held that:

The learned Advocate General is right in his submission that the State Government or the local authorities are under the obligation to identify schools defined under Section 2(n)(iii) & (iv) only if there are no schools in the neighbourhood. The case of the petitioners is that notwithstanding the existence of Government or Government aided schools in the neighbourhood, unaided schools must also be identified to ensure that parent and the child get admission in schools of their choice. If petitioner’s contention is to be accepted, the State Government will be compelled to reimburse astronomical figures. The argument on behalf of the petitioners that children entitled for seat under the RTE Act may choose an unaided school in the neighbourhood though there exist Government and aided schools, is fallacious. (paragraph 21)

The Court then went on to explain the need for judicial restraint in the review of administrative action (!), and noted that because the Rule was neither arbitrary nor unreasonable, it could not be struck down under judicial review.

There are, however, a number of flaws with the analysis in paragraph 21. The first and most glaring is that it appears to ignore the plain wording of the statute. Section 12(1)(c) is clear that the private school shall admit 25% of its Class I batch strength from the disadvantaged sections. The obligation upon the private schools, in other words, is mandatory. What the High Court did, however, was to convert this mandatory obligation into a conditional obligation, based upon its reading of Section 6 of the RTE. Section 6, however, is a different provision entirely: it is addressed to the role of the government in carrying out its obligations under the Act, and therefore, requires the government to establish schools within three years. Nowhere in Section 6 – or anywhere else in the Act – is it indicated that the Section 12(1)(c) obligation on private schools is subject to the obligation upon the government under Section 6 remaining unfulfilled. Something as important as that, one would think, would be spelt out in the Act itself, and not merely inferred. The bridge between Sections 6 and 12, therefore, that the Court built, seems to be made entirely out of air.

This is evident from the fact that the Court seemed to view the issue only to be involving the right of children to be admitted into private schools of their choice. Once the argument was framed this way, it was able to make the common-sensical argument that the Constitution only guaranteed the right to education, and not the right to education in a private school of one’s choice. This, however, attacks a straw-man. The purpose of Section 12(1)(c) goes beyond granting a right of admission to private schools. To get a sense of the purpose, consider the Statement of Objects and Reasons appended to the RTE Bill of 2008, which is a permissible external aid to interpretation:

The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.

Not only does this make clear that Sections 6 and 12 of the RTE Act are independent provisions operating in independent spheres, but it also provides the rationale: inclusion, or integration. The rationale is further elaborated – in absolutely unambiguous terms – by the Ministry of Human Resource Development’s clarificatory memorandum on the provisions of the RTE:

The idea that schooling should act as a means of social cohesion and inclusion is not new; it has been oft repeated. Inequitable and disparate schooling reinforces existing social and economic hierarchies, and promotes in the educated sections of society an indifference towards the plight of the poor. The currently used term ‘inclusive’ education implies, as did earlier terms like ‘common’ and ‘neighbourhood’ schools, that children from different backgrounds and with varying interests and ability will achieve their highest potential if they study in a shared classroom environment. The idea of inclusive schooling is also consistent with Constitutional values and ideals, especially with the ideals of fraternity, social justice and equality of opportunity. For children of socio economically weaker backgrounds to feel at home in private schools, it is necessary that they form a substantial proportion or critical mass in the class they join. The relevant universe in which the proportion needs to be considered is the class/section. It is for this reason that the RTE Act provides for admission of 25% children from disadvantaged groups and weaker sections in class I only. This implies that these children cannot be pooled together in a separate section or afternoon shift. Any arrangement which segregates, or treats these children in a differentiated manner vis-à-vis the fee-paying children will be counter- productive.

Think of it as the anti-segregation rationale of Brown v Board of Education, only applied to class instead of race. The purpose of Section 12 was – and is – to combat, in whatever minimal way, the two-tier system of schooling that exists in India, where class enforces what is effectively a highly segregated structure, and where the the rich and the poor are “sorted” right from the moment primary schooling begins. Now, of course, a lot of people may have objections to the wisdom or the efficacy of the provision, but that is not the question here. The question here is a question of interpretation. And from that perspective, once the inclusive or integrationist purpose is clear, it also becomes clear that Section 12 – far from being a “transitory” provision, something like a poor cousin of Section 6 – is the heart and soul of the RTE itself. And that being the case, there is little doubt that Rule 4 – which effectively negates Section 12 – is ultra vires the RTE, apart from being unconstitutional.

How did this meaning of Section 12 – hiding away in plain sight – escape the Court? It is hard to say, but the Court’s repeated reference to the financial burden on the exchequer and to how the number of state schools was declining, gives us a hint of the factors that may have influenced the decision-making process. Neither of these factors, however, is relevant. The question of reimbursement is a pure question of policy, which – on the Court’s own insistence – it was in no position to get into. And whether the effect of the RTE was the decline of state schools is, as well, a deeply complex issue where questions of causation would be particularly difficult, and – again – unsuitable for judicial adjudication. And in any event, the clear meaning of Section 12 – and the constitutional goals that it is designed to fulfil – should have been enough for the Court.

The Karnataka High Court’s judgment, however, now makes it very easy for state governments to accomplish an end run around the heart of the RTE, and through copycat rules, basically once again ensure the insulation of private schools from the obligations of inclusion and integration, thus restoring economic segregation in the field of education. In this light, one hopes that the judgment will be set aside on appeal to the Supreme Court.

 

Notes from a Foreign Field: A Critique of the Kenyan High Court’s Homosexuality Judgment

Tags

Equality, homosexuality, Kenya, non-discrimination, sexual orientation

In a judgment delivered last week (EG v Attorney-General), the High Court of Kenya upheld the criminalisation of same-sex relations under the Kenyan Constitution. At issue was the constitutionality of Sections 162 and 165 of the Kenyan Penal Code. Section 162 prohibits having “carnal knowledge of any person against the order of nature.” Section 165 criminalises acts of “gross indecency” between two male persons. In arguments that, by now, have attained a ring of familiarity, these provisions were challenged on the bases that they violated the rights to equality and non-discrimination, privacy and dignity, and health under the Kenyan Constitution, as well as being vague and over-broad.

In criticising the judgment of another country’s court, one must proceed with a degree of circumspection. Every nation’s constitutional jurisprudence is specific and unique, and the assumptions that one brings from a study of one’s own legal system may simply not hold. That said, however, on a reading of the judgment, the arguments advanced before the Kenyan High Court, and the manner in which the Court engaged with them have, by now, attained an almost universalistic cast: they have been litigated across a range of countries, and in supra-national forums, over many decades. It would, therefore, be almost remiss if one didn’t point out the ways in which the Kenyan High Court, with respect, appears to have delivered a seriously flawed judgment.

The Argument from Vagueness

It was argued before the Court that the phrases “carnal knowledge”, “against the order of nature”, and “gross indecency”, were impermissibly vague. This is, of course, a familiar argument, and readers will recall that in Kaushal, the Indian Supreme Court had dodged it entirely by recounting conflicting precedent, and then claiming that the question could be determined on a case-to-case basis. The Kenyan High Court, however, did a little better. Relying on precedent, it defined “carnal knowledge” as “sexual intercourse” (paragraph 270), “against the order of nature” as “anal sex” (paragraph 271), and “gross indecency” as contact between genital organs, or the breast and buttocks. (paragraph 273) Having defined each of these terms, the Court then held the two provisions were specific enough to pass constitutional muster.

That is fair enough in its own right, but notice that, having defined Section 162 in terms of a specific and particular sexual act, the implications of what that meant for the constitutionality of the statute could not, later, be dodged. However, when it came to the constitutional argument, this – as we shall see – was exactly what the Court did.

The Argument from Equality and Non-Discrimination

Article 27 of the Kenyan Constitution guarantees equality before law, and prohibits direct and indirect discrimination on a host of specified grounds, including race, sex, pregnancy, marital status, and so on. While interpreting the provision, the Kenyan High Court borrowed from the ECHR and South African jurisprudence, to (correctly) note that “unfair discrimination” occurs when a law “treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.” (para 288) However, after stating the position of law, the Court went on to hold in paras 295 and 296 that Sections 162 and 165 did not violate the Constitution, because:

The substance of the Petitioners’ complaint is that the impugned provisions target the LGBTIQ community only. If we understood them correctly, their contestation is that the impugned provisions do not apply against heterosexuals … [O]ur reading of the challenged provisions suggests otherwise. The language of section 162 is clear. It   uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.

Readers will recall that this is a very old and very familiar argument, which was also employed by the Supreme Court in Kaushal: the supposed distinction between “acts” and “identities”. According to this argument, anti-sodomy laws only target a specific set of sexual acts (in the present case, as defined by the Kenyan High Court, the act of anal sex), which could – in theory – be committed by heterosexuals or homosexuals. They do not target same-sex relations and, therefore, do not attract equality and non-discrimination provisions.

However, as old as this argument is, its basic flaws have also been pointed out multiple times. For example, as the US Supreme Court pointed out in Lawrence v Texas, when the act that is criminalised “is closely correlated with being homosexual … there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Likewise, in National Coalition, the South African Constitutional Court noted that “it is not the act of sodomy that is denounced by the law, but the so called sodomite who performs it.” The point, in other words, is that by criminalising a specific set of acts, anti-sodomy laws effectively construct the homosexual identity as legally salient, and go on to persecute it – a point that has, by now, been made in reams of scholarly literature. That point cannot be understood, however, if the statute is examined only on its own terms, and in the absence of the social context within which it is embedded and operates. And indeed, the text of Article 27 of the Kenyan Constitution does require the latter approach: by prohibiting both direct and indirect discrimination, it requires a court to examine the effect of a law (an enquiry that needs to be contextual), and not merely its formal language (which is what the Court limited itself to in the above paragraph).

In fact, when faced with Section 165, even the Court’s formal analysis began to border on the illogical. Section 165, it held, used the term “any male person”, and therefore targeted male persons in general, and not male persons of any particular sexual orientation. The Court seemed to miss the second half the provision, however, which uses the term “with another male person”! Now, when a statute criminalises “acts of gross indecency” only between two male persons, we don’t even need to go into questions of indirect discrimination – on its face, the statute clearly targets gay men.

That said, the Court did go on to consider questions of selective enforcement. After noting petitioners’ affidavits that set out various instances of discrimination and violence, the Court noted that “a party pleading violation of constitutional rights is at the very least expected to give credible evidence of the said violation and that it is not enough to merely plead and particularize a  violation.” In this case, “save for the allegations made in the Petition and the affidavits, no tangible evidence was given to support the allegations.” (paragraph 299)

But this is a bewildering argument. It is in the nature of social discrimination and prejudice that it is experiential: it takes the form of discrimination in access to services, taunts in public and private, physical violence, and so on. The only “tangible evidence” that can be produced in such cases is in the nature of the testimony of those affected by it – all of which was before the Court. And this is also the reason why there exist detailed sociological studies (see here) that discuss the interface between anti-sodomy laws and social norms. It is therefore unclear what kind of evidence the Court would have found satisfactory in this case (it did not specify).

The Argument from Privacy and Dignity

After moving quickly through some other arguments such as the right to health (I have refrained from analysing the Court’s analysis of this, because it appears to require access to the pleadings), the Court came to the final argument: that the provisions violated the rights to privacy and dignity. The Court made two arguments to reject this claim. First, it held that there was no conclusive evidence to support the proposition that homosexuals were “born that way.” (paragraph 393) And secondly, it held that the question of legalising same-sex marriage had been explicitly raised during the drafting of the Kenyan Constitution, and it had been answered in the negative, with Article 45 of the Constitution specifying that “every adult has the right to marry a person of the opposite sex.” According to the Court, allowing same-sex relations would “indirectly open the door for unions among persons of the same sex”, something that would conflict with Article 45. (para 397)

Let us take both arguments in turn. On the first issue, the Court is right that there exists some scholarly debate on the issue of whether sexual orientation is “innate” or whether it is a product of biological and social factors. Where the Court is wrong, however, is on the question of whether that matters at all. As this piece puts the point: “Why should gay rights depend on being born this way?” Indeed, the question of whether sexual orientation is innate or not is irrelevant to a privacy/dignity claim, where one of the core elements is that of decisional autonomy, and, in particular, the right to make intimate choices in freedom and without State coercion. Therefore, wherever upon the innate/choice spectrum sexuality may lie, its position upon that spectrum does not change the fact that it is protected by the constitutional rights to privacy and dignity.

The second argument is even more difficult to parse. Article 45 uses the specific term “marry“, and in the absence of a claim for same-sex marriage, it is difficult to see where the conflict is. The Court attempted to get around this by observing that Section 3(1) of the Marriage Act defined “marriage” as the “voluntary union between of a man and a woman.” For the second time in the judgment, however, the Court appears to have engaged in a spot of selective reading. Section 3(1), in full, reads: “Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.” This means that the Court’s attempts to equate “marriage” and “unions” when it says that legalising same-sex relations would “indirectly open the door for unions among persons of the same sex” is a piece of casuistry: by its very terms, a same-sex union would not amount to a marriage unless it is registered under the Marriage Act; and therefore, there is absolutely no conflict with Article 45 of the Kenyan Constitution.

It is also impossible to ignore the Court’s own shifts in meaning through the judgment: while considering the equality and non-discrimination claim, the Court held that Sections 162 an 165 only criminalised certain “acts”, and not persons. But when it came to the privacy and dignity claims, the Court switched tack, and found a seeming conflict with Article 45 of the Kenyan Constitution on the assumption that what Sections 162 and 165 did do was to outlaw same-sex relations, and not simply anal sex.

Conclusion

Article 27 of the Kenyan Constitution is a striking provision. It outlaws both direct and indirect discrimination. It provides a host of grounds: race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. And it uses the word “including” just after “ground”, signifying that the definition is open-ended. This makes it one of the most progressive anti-discrimination provisions in any Constitution, anywhere in the world.

It would seem the easiest and most natural of analytical feats to hold that sexual orientation falls within Article 27. The multiple grounds in connection are united by two things: they are either “personal characteristics”, or the products of personal and intimate choices. And they are united, further, by one overarching theme: they have been the historical and continuing sites of discrimination, used in order to identify and single out groups of people, and then target and attack them. On every conceivable understanding of this provision, therefore, sexual orientation clearly comes within its terms.

Why then did the judgment of the Kenyan High Court come out the way that it did? Reading it, I was in fact struck by the similarities that it had with Kaushal: both judgments are characterised by a similar unwillingness – an unwillingness not to justify or to defend discrimination, but simply to acknowledge that it even exists. This is what explains the fact that in both Koushal and in EG, ultimately, the Court dodged the hard questions by holding that the equality and non-discrimination provisions of the respective Constitutions didn’t even apply, because, after all, the only thing prohibited was a set of acts. The contextual analysis that was required to link these apparent “acts” to the stigmatisation and persecution of sexual minorities was the missing step that the Courts seemed either unwilling – or unable – to take.

But the future of Kaushal perhaps give hope that in Kenya as well, this is an error that shall soon be rectified.

The Uttarakhand High Court on Reservations and Article 16(1)

Tags

Equality, power, reservations, substantive equality

A Full Bench of the Uttarakhand High Court has just delivered an interesting judgment on the question of reservations and Article 16(1) of the Constitution. In Dhananjay Verma v State of Uttarakhand, the issue before the High Court was a straightforward one: could the State provide reservations for a group of people who fell outside the category of backward classes of citizens who were not adequately represented in State services? In the present case, reservations had been provided for sportspersons domiciled in the state of Uttarakhand. Sportspersons, admittedly, did not fall within the scope of Article 16(4), which specifically authorises reservations in State services. Consequently, were they entitled to reservations – and if so, under which Article of the Constitution?

On the constitutional issue, Chief Justice Ranganathan – writing for the Full Bench – held that reservations under the Constitution are authorised not merely by Article 16(4), but also by 16(1) [“equality of opportunity”]. The reasoning of the Full Bench was straightforward: it had been clearly established by N.M. Thomas and Indira Sawhney that Article 16(4) was not an exception to Article 16(1), but a facet – or a restatement – of it. This meant that 16(4) did nothing more than give concrete expression to the principle already contained within 16(1) – the principle of substantive equality. For this reason, even in the absence of 16(4), reservations could be sourced from 16(1)’s guarantee of equality of opportunity, as long as they met the basic threshold of reasonable classification.

While this line of reasoning – and the conclusion – seems unexceptionable, Courts in India have been remarkably hesitant over the years in affirming this logical extension of the Thomas-Sawhney principle. In the pre-Thomas days, of course, when Article 16(4) was considered to be an exception to Article 16(1), the situation was different: as the Patna High Court held in Sukhnandan Thakur (1955), over a strong dissent by the Chief Justice, reservations for ex-freedom fighters were unconstitutional, as they did not fall within the scope of Article 16(4). Two years after Thomas, though, the Punjab & Haryana High Court, in Jagdish Rai, took note of how Thomas had radically altered constitutional jurisprudence. It upheld reservations for ex-armed forces personnel, on the basis that under Article 16(1), a “just proportion of the posts should be given to those who, because of a peculiar handicap, may not stand a chance against those not so handicapped.” 

After that, however, the development of law – until Dhananjay Verma restated it yesterday – has been almost negligible. Part of the reason for this, I would suggest, is that judges have balked at the potentially radical consequences of this doctrine. Not only does it open up the scope of reservations to any group that is faced with structural or systemic barriers, but also, as I have argued in The Transformative Constitution:

“… if the principles underlying Article 16(4) are now ‘facets’ of Article 16(1), then it must follow that—as Galanter realized immediately after the judgement in N.M. Thomas was delivered—an individual who feels that she has been substantively disadvantaged by reason of her group membership has a right to approach the Court and demand that this inequality be mitigated. Of course, this radically transforms the relationship between individual and the State, when it comes to questions of structural inequalities and substantive barriers to access. After N.M. Thomas, the State does not merely have the power to remedy these inequalities, but has a duty to identify and remedy them—a duty for which it is answerable in a court.” 

As Karan Lahiri has argued before on this blog, the concept of a “power + duty” is not foreign to Indian constitutional jurisprudence. It would, however, radically alter our understanding of Article 16, even though it is a logical consequence of Thomas/Sawhney. And interestingly, the Uttarakhand High Court’s Full Bench appeared to have balked at that conclusion as well, setting up an interesting tension within the judgment. Because after holding that reservations could be sourced to Article 16(1), the High Court nonetheless refused to issue a mandamus to the government directing it to implement the quota for sportspersons, and instead left the issue to the discretion of the government.

There are a few things to note about this. The first is that this makes the judgment internally contradictory: the Full Bench could not both have held that reservations were sourced from Article 16(1), and that the issue remained purely discretionary. This is because Article 16(1) is framed as a right (to equality of opportunity), and a right whose enforcement is at the discretion of the State is no right at all. Secondly, the Ranganathan CJ justified this view by invoking the separation of powers, and observing that a mandamus to the State to implement reservations would amount to legislation. While the High Court’s concern about the separation of powers is to be genuinely appreciated in an age where it seems to matter less and less, on this point – with respect – it got its wires crossed. As Lahiri has explained, the duty aspect of “power + duty” does not refer to a duty to carve out reservations, but a duty to collect the facts and evidence that will show whether or not reservations are required (for a particular group), upon the principles of substantive equality. The mandamus, therefore, would be limited to just that – something well within the scope of the separation of powers – and not a mandamus to legislate. And lastly, in NALSA v Union of India, the Supreme Court did order reservations for the transgender community, after it found that the community was disadvantaged along a host of parametres. Consequently, there existed precedent even for a judicial order of reservations following upon the relevant finding of substantive disadvantage and denial of equality of opportunity within the meaning of Article 16(1).

Conclusion

The Uttarakhand High Court’s judgment is a welcome and lucid restatement of the law. Its clear holding that Article 16(1) is the constitutional source of reservations – and that groups other than the 16(4) groups can be granted reservation subject to reasonable classification – has been long overdue. That said, however, the High Court stopped short: carrying through with its reasoning, it also ought to have clarified that reservations form part of the right to substantive equality, and that 16(1) imposes a duty upon the State at least to conduct the necessary data-gathering exercise that would serve as a pre-requisite towards implementing the promise of substantive equality underlying Article 16.

Perhaps that will be the task of the Supreme Court, if this judgment is appealed.

Reservations in Promotions and the Idea of Efficiency: B.K. Pavitra v Union of India

Tags

Equality, equality of opportunity, reservations, transformative constitution

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

---

This morning, a two-judge bench of the Supreme Court delivered a fascinating judgment in B.K. Pavitra v Union of India, concerning the relationship between reservations in promotions for Scheduled Castes and Scheduled Tribes [SCs/STs], and issues of seniority. The facts were as follows: in 2002, the state of Karnataka enacted a law stipulating – in effect – that consequential seniority would follow upon the promotions of SC/ST employees. To put it in simple language: if a reserved category employee (A) was promoted before a more senior colleague (B) by virtue of A belonging to the reserved category, then – in the higher level post – A would now be senior to B (when, eventually, the latter would get promoted as well).

Readers familiar with reservation will know that this issue – bitterly contested over many decades – was eventually set at rest by amendments to Article 16(4A) of the Constitution, that authorised consequential seniority in cases of reservations in promotions. In Nagaraj, while upholding the amendment in question, a Constitution Bench of the Supreme Court also held that the government was obligated to first collect data demonstrating “inadequacy” of SC/ST representation in the services, their “backwardness”, and the impact on “efficiency”, before it could enact laws in accordance with Article 16(4A). In 2017, the Supreme Court then found that the Karnataka law did not comply with Nagaraj, and was therefore unconstitutional (B.K. Pavitra – I). In response, the Karnataka government commissioned a study [“the Ratna Prabha Committee Report”], and based on the results of the study, (basically) re-enacted the earlier law.

The constitutional challenge to the law raised a host of issues. It was argued that Karnataka had impermissibly “overruled” the judgment in Pavitra – I by re-enacting the law that had been held to be unconstitutional, and doing it retroactively, to boot. It was argued that the bill had been wrongly sent for Presidential assent. It was argued that the study on the basis of which the law was passed was flawed. And it was argued that the law was unconstitutional because it failed to exclude the “creamy layer.” In this essay, I will not discuss all of the above issues: on some points, such as legislative overruling, the Court essentially synthesised and restated existing law; readers interested in the subject may read the judgment for a clear and lucid exposition of the principles. What I want to focus on, rather, are some of the novel issues that arose, as well as the novel treatment that the Court accorded to older issues.

Standards of Judicial Review

As the Chandrachud J. correctly observed at the beginning of the judgment, this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State’s data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations (with consequential seniority) in promotions (paragraph 4).

The petitioners argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature. The Respondents contended, on the other hand, that these questions were within the “subjective satisfaction” of the State (as had been held in Indra Sawhney), and that it was the State that was in the best position to “define and measure merit.”

In response, the Court noted that, as a preliminary point, it would have to set down the parametres of judicial review in a case like this. These parametres, it held, would be based on two mutually reinforcing principles: the first was the general principle that the executive was best aware of prevailing conditions. This is nothing more than the familiar presumption of constitutionality. The second principle was more specific: in the context of reservations, questions such as adequacy of representation would be left, at the first instance, to the subjective satisfaction of the State. This was because, as Chandrachud J. noted, the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. (paragraph 95). Applying these principles to the Ratna Prabha Committee Report, Chandrachud J. observed that the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining “inadequacy of representation.”

A few things follow from this discussion. The first is that the Court adopted a deferential attitude towards the State’s collection of data, and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. In other words, the Court recognised the crucial point that constitutional goals are to be advanced by all three wings of the State, and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State’s subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. Note, also, what follows: this principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself. In a case where – for example – the challenge is on the basis of a violation of civil rights, the Court may well elect to take on a more interventionist approach to the reliability of the data. In the specific context of reservations, though, given the constitutional text, and the clear responsibility of the State, this the Court’s approach has much to recommend it.

Interrogating Efficiency

Now, of course, it might be argued that the Court ought to have been more interventionist, because the case did indeed involve a violation of rights – the Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by Chandrachud J. in the subsequent section where, relying upon the judgments in N.M. Thomas and Subba Rao J.’s dissenting opinion in Devadasan, he correctly observed that it was the principle of substantive equality – and not formal equality – that underlay the Constitution’s equality code. As Chandrachud J. observed, at paragraph 107:

There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.

Readers may consult the following paragraphs for an account of the Constituent Assembly Debates, the the place of reservations in advancing the Constitution’s transformative character. This discussion, however, segued into what is perhaps the most fascinating part of the judgment. Recall that, according to Nagaraj, the government was also required to collect data on whether reservations in promotion would affect “efficiency” in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so.

In response, Chandrachud J. undertook a critique of the concept of “efficiency” itself. In paragraph 119, he observed that:

The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

This needs some careful unpacking. What Chandrachud J. is effectively arguing against here is an account of “efficiency” that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure “individual merit”, independent of an individual’s group affiliation. This is what efficiency is about, and it must be set off and “balanced” against group-based affirmative action. However, this account has been challenged throughout our history (starting with Subba Rao J.’s dissenting opinion in Devadasan), and here Chandrachud J. takes up the challenge. At the heart of this reasoning is the acknowledgment that assumptions about what people are (i.e., their “merit” or “efficiency”) cannot be separated from what has been done to them (i.e., structural and social privileges, often the product of centuries of discrimination). And ultimately, constitutional values dictate that both must be taken into account. Thus, as Chandrachud J. observed in paragraph 126:

Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

On these bases – and on the basis of the Report’s finding that there had been no adverse impact even on instrumental efficiency as the data showed, this ground of challenge was rejected as well.

Creamy Layer

A final point: it was argued that the law was unconstitutional because – after Jarnail Singh – it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court correctly observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out once more, however, that Jarnail Singh’s finding on this respect is somewhat suspect: the reason why the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity. The concept of the creamy layer makes sense if we assume that it is possible to escape one’s group identity (through prosperity or other ways of social advancement, for example). However, when oppression is defined by characteristics such as social stigma (as was well-recognised by Ambedkar and other framers of the Constitution), then the very concept of a “creamy layer” within that group does not make sense. This aspect of Jarnail Singh, it is to be hoped, will be reconsidered at some point.

Conclusion

Today’s judgment is a fascinating read, particularly because of the manner in which it moves between different levels of reasoning – from concrete issues of service jurisprudence to the abstract principles of substantive equality and the idea of merit – and how it weaves them together in one coherent vision of transformative constitutionalism. The Court’s finding on the substantive question – the constitutionality of the seniority law – is informed by its reasoning about the abstract principles that underly the Constitution’s equality code; in other words, the Court believes that the Constitution ideals make a difference, and it explains precisely how it does so. And moreover, it joins an important tradition of judicial reasoning on affirmative action that does not take concepts of “merit” and “efficiency” as self-evident, but subjects them to critical evaluation, from the perspective of the original constitutional vision, noting how they are embedded within our social realities (and inequalities). This tradition of reasoning has, so far, been underdeveloped in our constitutional history – and today’s judgment marks an important milestone in its evolution.

Guest Post: The Case against the 103rd Amendment

Tags

basic structure, caste, Equality, reservations

(This is a guest post by Malavika Prasad. A prior version appeared here.)

---

The 103rd Constitutional Amendment permits the State to:

1. make special provisions (Article 15(6)),
2. make special provisions, including reservations in admissions to educational institutions, in addition to the existing reservations to the extent of 10%, and
3. make provision for reservations in appointments or posts, in addition to the existing reservations to the extent of 10% for the advancement of “any economically weaker sections of citizens other than the classes mentioned” in Articles 15(4) and (5) and Article 16(4).

In this piece, I respond to Gautam Bhatia and Anup Surendranath, and make the basic structure argument against the 10% reservation for this class of beneficiaries. I do not present any analysis on the constitutionality of other “special provisions” such as scholarships, fee waivers, etc.

Reservations are meant to ensure that the ideal of “equal opportunity” is not a mirage for persons subordinated by social structures such as caste, gender, race, etc. This is why Article 16(4) is considered to be an emphatic restatement of Article 16(1)’s principle of equality of opportunity (see NM Thomas, Indira Sawhney and this paper examining the relationship between the two articles). Prior to the 103rd Amendment, in an ideal India in which quality education is available in public schools, a beneficiary of reservation under Articles 15(4) and (5) and Article 16(4) (let’s call them “protected groups”), from the parent’s generation ought to attain upward mobility of the degree and kind that enables their children or grandchildren to compete for the unreserved, open seats. So long as there is a steady stream of first generation learners from protected groups attending school each year with the benefit of reservation, the numbers of second and later generation learners from protected groups in the total pool of students (comprising reserved and unreserved seats) ought to grow. Growing numbers of later generation learners from these protected groups, in even unreserved seats, would be testimony to the success of a reservation program: the parental generation, being beneficiaries of reservation, gained a boost that enabled the later generations compete without the need for a similar boost. In other words, the benefit of reservation to earlier generation learners enables later generations of learners to work their way up, in educational institutions and the workforce, and out of the conditions of backwardness.

This logic is, of course, an oversimplification resorted to here only for the purpose of the argument. In reality, the conditions of backwardness that characterize OBCs are qualitatively different than those for SCs/STs. The key difference between the two is of social stigma: persons from SC communities, for instance, regardless of their attainments in education and employment, continue to face the stigma of untouchability by other members of society, a reality steadfastly recognised by the Supreme Court in 1992 Indira Sawhney, albeit with a recent and problematic departure in Jarnail Singh. A study of the castes and tribal groups classified as SC/ST, and the determinants for doing so is available in Chapter 5 of Marc Galanter’s Competing Inequalities.

The Rights of Later-Generation SC/ST/OBC Learners

After Articles 15(6) and 16(6), the number of second and later generation learners from protected groups who take up unreserved seats might diminish, notwithstanding the growing numbers of them who are capable of competing in the open channel. This would not have happened but for the Amendment, because the new set of beneficiaries under Articles 15(6) and 16(6) are to be “other” than those from the protected groups contemplated in Article 15(4) and (5) and 16(4). In other words, the new class of beneficiaries is defined in opposition to the old classes of beneficiaries. So when the State sets about following the Amendment’s instructions to name the new class of beneficiaries, it must first analyse what counts as “economic disadvantage” and then produce “indicators”. Then, it must test which persons qualify against these indicators of economic disadvantage. In doing so, the State must consider only persons who are not from the protected groups of SCs/STs or OBCs. Thus, to the extent of 10%, educationally well-to-do persons can be beneficiaries of reservations in educational institutions under Article 15(6). Likewise, classes of citizens who are adequately represented in the State services can be beneficiaries of reservations in the State services under Article 16(6). The Amendment thus cements the claim of persons from upper castes who are possibly educationally well-to-do and adequately represented in State services, on 10% of seats or posts.  

Furthermore, the new class of beneficiaries is left to the State to notify from time to time, “on the basis of family income and other indicators of economic disadvantage.” What might count as “indicators of economic disadvantage” is unclear. Since “indicators of economic disadvantage” are to be understood in conjunction with “family income”, presumably, the indicators of disadvantage will consider disadvantage that afflicts families, and thus members of families i.e. individuals. Thus, the Amendment will cement the claim of persons from educationally well-to-do and otherwise well-represented upper-castes, based solely on characteristics that are individual to them.

This damages the basic structure of the Constitution of India. To be clear, the argument is not that the Amendment excludes second and later generation learners of SC/ST/OBCs capable of accessing unreserved seats, from accessing 10% unreserved seats. This by itself is not a problem for the basic structure; it is thus no response to argue that the SC/ST/OBCs already have 50% reserved seats and thus cannot remedy the loss of potential access to unreserved seats. The argument is that the exclusion of these later generation learners, due to an a priori reservation of 10% seats for persons from the upper-castes, is a violation of the basic structure doctrine.

The Logic of Group Representation

This argument hinges on the premise that reservations, as a special provision are meant to achieve representation of communities so far either unrepresented or inadequately represented in the State. That reservations are meant to guarantee opportunity for representation was the premise of even the debates in the Constituent Assembly on Article 16 (Draft Article 10) for instance here, here, here, here and here.

If we can agree that reservations are meant to remedy inadequate representation, then I make two claims:

First: reservations in particular, unlike other special provisions, are only a fruitful remedy to persons subordinated by a structural barrier such as caste, race and gender. This follows from the purpose of reservations being to enhance the representation of those groups that are inadequately represented. Inadequate representation of certain groups is a consequence of members from those groups being held back, throughout their lives, from accessing opportunities on par with the rest of society, by other members of society. For instance, gatekeepers to social spaces such as schools, workplaces, shops etc. continue to practice untouchability, or create other onerous entry barriers for persons from SC/STs. Such continual treatment as “lesser” than others could also psychological harms and intergenerational trauma in persons from SC/STs. One’s birth into castes that are SC/ST then becomes the cause for further and cumulative disadvantage that is not only social and educational but also economic. Contrast this with persons from upper-castes who are setback by “economic disadvantage”. Such disadvantage is not caused by being systematically treated discriminatorily by other members of society. Even the framers of the 1st Constitutional Amendment which introduced Article 15(4) were conscious of the nature of economic disadvantage, as Galanter notes:

In spite of [Prime Minister Nehru’s] reluctance to talk about caste, it is clear that what was intended were not measures to erase all inequalities, but specifically those which were associated with traditional social structure. “[W]e want to put an end to . . . all those infinite divisions that have grown up in our social life . . . we may call them by any name you like, the caste system or religious divisions, etc. There are of course economic divisions but we realize them and we try to deal with them. . . . But in the structure that has grown up . . . with its vast number of fissures or divisions.”

Galanter also notes that Nehru was unwilling to accept any of KT Shah’s amendments that sought to remedy only “economic backwardness” of individuals, as opposed to social and educational backwardness of “classes”:

He then observed: “But if I added ‘economically’ I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. ‘Socially’ is a much wider word including many things and certainly including economically” (id., 9830).

Since “economic disadvantage” as contemplated in the 103rd Amendment is unlike the structural disadvantage of caste, in that it varies from individual to individual and does not result from membership in a subordinated group, there is nothing to be gained from granting reservations to persons suffering economic disadvantage. This is because the barriers facing upper-caste persons with economic disadvantage are not barriers of representation. One might respond that reservations nonetheless are sought by groups that do not seek to be better represented, because they are an immediate and tangible benefit unlike other special provisions. While that may be true of the demand for reservation by upper-castes, it is not constitutional to accede to such a demand – which is the substance of my next claim.

Equality and the Basic Structure

Second, if reservations are to remedy the effects of caste-subordination by providing representation, then enhancing and cementing the representation of upper-castes damages democracy, which is a part of the basic structure of the Constitution of India.  This aphorism is oft-invoked in cases concerned with questions of what comprises a representative democracy (“free and fair elections”, “judicial review of governor’s powers”) and how a representative democracy can be realized (mechanisms like “one-person-one-vote”, or “secret ballot”). For instance, Justices Khanna and Mathew held, in Indira Gandhi v. Raj Narain, that the constitutional amendment immunizing the election of the Prime Minister and Speaker from judicial challenge damages the principle of “free and fair elections”, a central principle of democracy. RC Poudyal v. Union held that a marginal distortion of the “one-person-one-vote” principle does not damage representative democracy. Kuldip Nayyar held that doing away with the requirement of domicile in the State of candidacy and secret ballot in Rajya Sabha elections would not damage representative democracy. It is the what – the concept in Bhatia’s and originally Dworkin’s words – and not the how – the “conception” – that courts recognise as part of the basic structure. In all these cases, Courts appear to repeatedly uphold elements of the structure and form of democratic government as part of the basic structure.

The form and structure of democratic government cannot be an end in itself, unless all citizens are a priori free and equal to each other. Indian society however possesses deep-seated inequality perpetuated by structures such as caste, and is thus fundamentally undemocratic. Democratic government was chosen as the means to achieve substantive democracy. Dr. Ambedkar reckoned with this reality as he defended the choice to place the working of the administrative services in the Constitution:

While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.

 

If elements of the structure of democratic government (such as “free and fair elections”) are part of the basic structure of the Constitution, then the ends sought to be realized through the means of democratic government must also be part of the basic structure. In other words, the why of democracy must be equally central to the basic structure of the Indian Constitution as the how and the what of democracy.

The why of our democracy, as Ambedkar stated, is to realize equality of all persons, despite our deep social stratifications. For substantive democracy, remedying subordination by virtue of caste-membership is indispensable. The 10% reservation for upper-castes undoes this remedy, by cementing the representation of upper-caste persons based on individual criteria such as economic disadvantage. In other words, the 103rd Amendment cements the power of already well-represented groups to the detriment of protected groups. This is a fundamentally undemocratic outcome, taking us back to the status quo in 1950 which we sought to consciously progress from in promulgating the Constitution of India. Thus, the 10% reservation consciously damages substantive democracy which is a core aspect and basic feature of the Constitution of India.

Conclusion

In lieu of a conclusion, it bears mentioning that for my argument, it is irrelevant whether the 10% quota is provided over and above the 50% reservation, or within the 50% reservation such that SC/ST/OBCs are entitled only to 40%. Likewise, nothing turns on breaching the 50% rule either – which can easily be breached by a constitutional amendment so long as special provisions are seen as an emphatic restatement of the principle of equal opportunity. Instead, my argument is merely that cementing the representation of persons from upper-castes damages substantive democracy – upper castes being adequately represented in all social spaces, educational institutions, and in the services of the State. The remedy for upper-caste individuals set back by economic disadvantage lies elsewhere, but not in reservations.