[This is a guest post by Chiranth Mukunda.]
On March 3rd, the Supreme Court said that it would take a call to list the Karnataka Hijab case. Partly because of the frustration with the ERP test, which discounts agency, and partly because of the opportunity the case provides to develop the law on other constitutional grounds, a considerable amount of debate has shifted to Articles 14 and 15 (equality) and freedom of speech (Article 19), and away from Article 25.
Previously, on this blog, many authors have argued for adopting the principle of reasonable accommodation in support of their case for allowing female Muslim students to wear hijab along with their uniform (see here, here, and here). These arguments tend to focus on the principle of reasonable accommodation in these scenarios:
- While applying proportionality as a limitation analysis for restricting symbolic expression i.e., to consider the reasonableness of the restriction under Article 19. This argument goes as follows: The necessity (third) prong of proportionality requires the state to adopt the least restrictive measure to achieve a legitimate goal. Therefore, if the hijab as a form of symbolic speech grounded in constitutional rights can be reasonably accommodated along with the uniform, the restriction will be disproportionate. (here)
- To make a case of indirect discrimination based on adverse effects (here). This goes as follows: the facially neutral policy of wearing a uniform has a disproportionate burden on female Muslim students, and the consequent failure to provide reasonable accommodation constitutes a case of indirect discrimination. What is important to highlight here is that indirect discrimination also involves proportionality analysis. Presently, disparate impact on a group can be justified if it is a proportionate means of achieving a legitimate aim, failure to establish this by the respondent makes a case of indirect discrimination.
In his split judgment, Dhulia J finds the situation in the hijab case analogous to the situation in the Bijoe Emmanuel case, which he considers a “guiding star which will show us the path laid down by the well-established principles of our Constitutional values, the path of understanding and tolerance, which we may also call as reasonable accommodation.” What is to be noted here is that reasonable accommodation is formulated as mere tolerance, a magnanimous concession from the majority, rather than a matter of right. This way of reasoning presupposes objectionable conduct (objection component) which is then to be balanced by the acceptance component i.e., the reasons to transcend the objection component, which are given by constitutional values. This is not a problem with the framing by the judge, but as I show below, it is inherent in the very concept of accommodation. Alternatively, as a matter of right, constitutional values negate the very first step of the conduct being considered objectionable.
Indian jurisprudence on reasonable accommodation is not fully developed, even in the cases of disability rights where it is explicitly applied as a principle, and its application to sex and religious discrimination cases is vague. In addition to its relative infancy in these areas, there is an inherent limitation to its application, more so when sex and religion are the subject matter than disability. It gets more complicated when sex and religion are entangled, as in the hijab case. I argue that, when discrimination is systematic and institutional, engrained in the system of domination, having temporary gains in the form of reasonable accommodation belies the transformative purpose of the non-discrimination guarantee.
In this essay, I will first, briefly set out the principle of reasonable accommodation as recognized by the Supreme Court; second, highlight the drawbacks of the principle by showing its assimilative tendencies; and third, consider its application along with the adverse effect claim and the consequent limitations of that line of enquiry.
The principle of reasonable accommodation: cuts both ways.
Recognition of the principle by the Supreme Court
Sandra Fredman advocates for a multi-dimensional approach to substantive equality to liberate it from a formulistic approach. Each of these dimensions might be overlapping, but what it essentially does is to provide an “analytical framework” for achieving substantive equality. These four dimensions are:
First, redressing disadvantage: it aims to break the cycle of disadvantage associated with status;
Secondly, redressing stigma, stereotyping, and humiliation;
Thirdly, the participative dimension: participation in society both socially and politically;
Fourthly, accommodating difference and structural change; not exacting conformity as a price for equality.
In the fourth dimension, structural change sits uneasily with accommodation. Rather than being complementary to each other, it is argued that the idea of accommodation hinders structural change. The accommodation principle has also been called the ‘difference approach’ for its link to the sameness/difference framework of formal equality. Also to be noted is the potential for ‘accommodation’ to negatively affect the second dimension by furthering stigma and stereotyping.
In recent years, the Court has with increasing frequency opined that the general equality guarantee set out in Article 14 is not limited to formal equality, but is a more substantive guarantee linked to remedying patterns of disadvantage for a group/class suffering systematic discrimination. In the NALSA case, the Supreme Court held that:
…equality not only implies preventing discrimination (example, the protection of individuals against unfavorable treatment by introducing anti-discrimination laws) but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.
A similar concept was advanced in cases like Jeeja Gosh and Vikash Kumar, where the Supreme Court applied the principle of reasonable accommodation as a ‘substantive equality facilitator’. In the area of disability rights, “the concept of reasonable accommodation entails making necessary and appropriate modifications and adjustments so long as they do not impose a disproportionate or undue burden in a particular case to persons with disability.” (see here)
What is implicit in the need for making appropriate modifications and adjustments is that in some situations it might be appropriate to retain the norm while making exceptions, and accommodating differences whenever the cases arise. Prof. Sandra Fredman gives an example that “when Sikhs are unable to wear a hard hat on a construction site because of their religious duty to wear a turban, the creation of an exception is preferable to the wholesale rejection of the rule” (see Canadian case Bhinder vs CN). In this scenario, it might be intuitively preferable to keep the norm while accommodating “difference”, but in complex scenarios where the norm itself needs to be challenged, the principle suffers from serious limitations. In such scenarios, to effectuate systematic change, it requires the wholesale rejection of the norm, rather than carving out exceptions. I will come to this point later in the piece.
One size does not fit all
While the principle of reasonable accommodation is explicitly recognized in cases dealing with disability rights, there is a cause for caution in applying the same principle in cases the of gender and religion in diverse societies because of its assimilative tendencies and capacity to reinforce stigma and stereotype. As Chandrachud J recognized in Vikash Singh, the principle of reasonable accommodation in disability rights is an individualized principle, and what is reasonable might require case-to-case analysis, because the extent of disability varies from individual to individual. What needs to be highlighted is that the same principle cannot be applied in all cases with different identities and contexts. Although the peculiarity of each individual case of disability might necessitate individual enquiry, this doesn’t imply structural change is unnecessary in other disability rights cases. Nevertheless, on balance individualized assessment in religion and gender cases has the potential to hinder structural change.
Reasonable accommodation as ‘second class version of equality’
The problem with this principle is inherent in the plain words ‘reasonable and ‘accommodation’. To start with, what does ‘reasonable’ mean? Does it mean some type of cost-benefit analysis? Or a proportionality/balancing approach? Chandrachud J in Vikash Singh observed:
Reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden.
If this is the case, then the dignity of the individual is forsaken when the person’s right to equality in a substantive sense is subject to the burden that falls on a duty-bound person. If mere inconvenience to society can act as a cause to limit freedom, what is the worth of freedom anyway? Further, ‘accommodation’ implies that the power to define social interactions remains with the dominant group, while those who fall on the wrong side of it are burdened to challenge it. The likelihood of the challenge to succeed is contingent on accommodation being feasible for the other party. These lines by Brodsky and Day capture the essence of the exceptionalist aspect of reasonable accommodation:
It does not challenge the imbalances of power, or the discourses of dominance, such as racism, able-bodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated… In short, accommodation is assimilationist. Its goal is to try to make “different” people fit into existing systems.
Essentially, the principle of reasonable accommodation entails that “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.” While the exclusive norm is a socially constructed barrier acting as a restraining factor with an unequal burden on disadvantaged classes; the ability to change this is dependent on the new norm not causing undue hardship to the powerful and majority.
Another side of the same coin: a link to formal equality
Catharine Mackinnon, in the context of gender discrimination, highlights the problems with reasonable accommodation. In the formal equality approach, there are two types: those who are ‘same’ and those who are ‘different’. It entails treating likes alike and making exceptions to those who are different. This sameness-difference framework implies that there is a dominant category that is normal, and those under it should be treated the same, while those who are relatively different from it are considered ‘abnormal’, a deviation from the norm. Thus, accommodations should be made to bring them close to the norm. She writes, “…man (the dominant norm) is the measure of all things…and our equality judged by our proximity to him.” Hence, by treating the status quo as standard and accepting its norms as neutral, reasonable accommodation does not challenge the dominant social structure but merely carves out exceptions in the language of “special privilege”. Therefore, substantive interpretation of the right to equality should avoid the language of special or preferential treatment, but reasonable accommodation does not seem far from taking us back to formal equality.
Adverse effect and corresponding duty to accommodate: Limitations
Indirect discrimination/adverse effect in the hijab case
When a facially neutral policy or practice, in operation, adversely and disproportionately affects a protected group, a prima facie case of indirect discrimination is made out. The burden is on the respondent to prove that it is a proportionate means of achieving a legitimate aim. This implies that, under the existing framework, indirect discrimination is justified or excused as opposed to direct discrimination on a protected ground, which needs an explicit statutory enabling provision (like 15(3)). What is important to note here is that whether the practice is directly or indirectly discriminatory has a substantial bearing on the line of enquiry, justifications offered, and the outcome of the case. It also determines the degree of oversight, deference, and seriousness with which the judge will look into the matter. Hence, it is important to configure the underlying basis of distinction.
Let’s focus on the word ‘neutral. Because a particular practice or policy is neutral on its face and generally applicable, the form of the impugned measure is not challenged, but the effect of the policy is examined. But a deeper analysis will show that what is neutral is itself a product of structures and norms created by the majority. Institutionalized expression of these norms makes them looks like innocuous facts, but they are nothing but “generalized descriptions of those who are the dominant and traditional participants in a particular institution, and of the conditions that will best support them.”
An example (like the one here, with modifications) will clarify the point. Suppose a school has a calendar specifying holidays throughout the year, which were originally based on the mainstream festivals of the dominant religion. Now the rule applies neutrally and equally to all students in the school who are made up of a diversity of faiths and beliefs. In this scenario, can we call the calendar neutral because of its general application? Now when this ‘neutral’ calendar conflicts with religious observances of non-dominant religions, this supposedly becomes a case of adverse effect discrimination and casts a duty on the school authorities to reasonably accommodate non-dominant faiths subject to undue burden. There is an additional caveat. Now suppose the school authorities oppose accommodation, citing secularism as a value to be upheld and reasoning that it is justified to not accommodate because, say, it may lower the morale of students in a secular institution (I do not consider the difference of positive and negative secularism here for the sake of simplicity). It’s hard to miss the irony here, as the original norm was itself a product of a traditionally dominant structure, whereas now minority groups are merely to be accommodated, short of causing undue hardship, which is now subject to secular values. Cultural life forms of the dominant group are in sync with the social structure, but those with distinct cultural identities and forms of life are disadvantaged in the same structure. Here, striking down the rule might be more appropriate than making minor exceptions in the form of reasonable accommodations.
The point is that whether to strike down the rule causing adverse effects on a disadvantaged group or make accommodations is a choice that must be made. A rigid distinction between direct and indirect discrimination will offer remedies that are short on structural change and fail to reach the true goal of substantive equality, i.e., remedying structural disadvantage. The above-mentioned scenario might have struck a chord with its readers for its similarity with the situation in the hijab case. Simply put, the uniform was designed and implemented, ignoring the possibility of someone wearing a hijab going to the institution. Naturally then, it becomes a clear case of direct discrimination based on protected grounds. So, the broader point is that “neutral” rules are not as innocuous as they may seem, they conceal the seriousness of the violation behind a veil of neutrality.
The shaky distinction between adverse effect and direct discrimination:
In the landmark Canadian case of Meiorin, the Supreme Court of Canada held that:
…the assumption that leaving an ostensibly neutral standard in place is appropriate so long as its adverse effects are felt only by a numerical minority is questionable: the standard itself is discriminatory because it treats some individuals differently from others on the basis of a prohibited ground, the size of the “affected group” is easily manipulable…
Further, it held that the distinction between adverse effect discrimination and direct discrimination is unrealistic and leaves room for abuse. Seldom is the discrimination open, like “no female Muslim students here”. The court then considers the malleability of the distinction:
… a rule requiring all workers to appear at work on Fridays or face dismissal may plausibly be characterized as either directly discriminatory (because it means that no workers whose religious beliefs preclude working on Fridays may be employed there) or as a neutral rule that merely has an adverse effect on a few individuals (those same workers whose religious beliefs prevent them from working on Fridays).
Its reasoning was that-distinction between these two approaches “may serve to legitimize systemic discrimination” and give a standard drafted in neutral language “an undeserved cloak of legitimacy”; and on reasonable accommodation , the court opined:
Although the Government may have a duty to accommodate an individual claimant, the practical result of the conventional analysis is that the complex web of seemingly neutral, systemic barriers to traditionally male-dominated occupations remain beyond the direct reach of the law. The right to be free from discrimination is reduced to a question of whether the “mainstream” can afford to confer proper treatment on those adversely affected, within the confines of its existing formal standard. If it cannot, the edifice of systemic discrimination receives the law’s approval. This cannot be right.
The court, then adopted a uniform approach to both direct and indirect discrimination because it considered that the “classification ill-serves the purpose of contemporary human rights legislation.”
Before this judgment by the Canadian Supreme Court, direct discrimination had a higher standard of review, which required the impugned measure to be “reasonably necessary” to the stated legitimate goal, whereas indirect discrimination merely required rationality review. Since Meiroin, the distinction between direct and indirect discrimination in Canada has no practical utility since the same analytical framework applies to both types of discrimination. Contrast this with India, where the place of indirect discrimination itself is still unclear. Some have located it in the manifest arbitrariness test or in the classification test of Article 14, while others have suggested that Article 15 challenge can include both direct and indirect discrimination. A judicial resolution of this dilemma is needed because Article 15(1) is of the nature of constitutional prohibition, whereas Article 14 involves an analysis of reasonableness.
Nevertheless, the purpose of the above discussion was to show that an artificial distinction between direct and indirect discrimination solely based on neutrality or general applicability of the standard needs to be reconsidered, because it gives undue legitimacy to the rule causing an adverse effect on protected grounds.
Indirect discrimination and accommodation: eschewing exceptionalist remedies.
Considering all the above-mentioned points, if the court frames the issue as one of adverse effects, it is more likely that the rule will stay, and accommodation, subject to reasonableness will be added. Considering this, Joan Williams in this paper explains how the standard structure of wage labour is male centric, structured without taking into account childcare activities, which are disproportionately done by women i.e., an ideal worker is defined as someone who follows a male pattern of life. Women are predominantly disadvantaged in this structure, they may either choose part-time work or a lower-paying job with relatively lesser benefits. One way to remedy this is to recognize the disparity in childcare responsibilities and afford special protections to women who are burdened as a result as a result of unequal childcare responsibilities. This will be hailed as a substantive equality measure which has taken account of social realities. This way, the structure of male-centric wage labor remains, but those who are disadvantaged are going to be ‘accommodated’. This is what Williams argues against.
She makes a case for protecting not only women but “anyone who has eschewed ideal worker status to fulfil child-care responsibilities.” The measure should be sex-neutral, not gender-neutral. (see here, for more) This type of remedy avoids exceptionalist measures, while still being grounded on social realities. This way, the problem faced in the South African Constitutional Court case of Hugo can be overcome. Hence, meaningful change requires changing the entire structure of ideal wage labour, and not simply making accommodations.
Thus, the accommodation approach has the potential to reinforce existing presumptions about what is considered ‘normal’. In the Nitisha judgment, Chandrachud J opined:
The duty of constitutional courts, when confronted with such a scheme of things, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them, but also structure adequate reliefs and remedies that facilitate social re- distribution by providing for positive entitlements that aim to negate the scope of future harm.
Evidently, reasonable accommodation fails to meet this criterion of substantive equality. If ‘social redistribution’ that ‘negate[s] the scope of future harm’ is what substantive equality seeks to achieve, using the means of individualized principle like reasonable accommodation in gender and religious discrimination cases is inadequate for the stated purpose.
In cases of adverse effects or indirect discrimination, the duty to reasonably accommodate, in the nature of an exception, is less of a duty than a way to escape liability. If the transformative purpose of our Constitution is to be achieved, we need to make the concept of ‘inclusiveness’ central to our approach while remedying class/group disadvantage. Inclusiveness does not only demand that ‘difference’ to be accommodated but also mandates dismantling existing social hierarchical norms and to deinstitutionalize ‘difference’. This does not mean non-recognition of ‘difference’ but would rather mean eliminating the unfavorable social consequences attached to the ‘difference’ by reducing the role ‘difference’ plays in organizing social life.
Altogether, the principle of reasonable accommodation is innocent in its foundation. It seeks to achieve inclusiveness, but it should be noted that it is not inclusive enough. Proponents of substantive equality should be wary of ad hoc approaches like reasonable accommodation while what is needed is a fundamental shift. As Brodsky and Day note, “…minority rights version of accommodation does not require the powerful and the majority to work with others, on an equal footing, to devise new rules and practices that will better serve all the groups in a diverse population.” Treating disadvantaged groups as equals requires abandoning the language of special treatment/privilege and looking for genuine equality.
To sum up, the distinction between direct and indirect discrimination in the hijab case should be reconsidered; adverse effect discrimination should not preclude considering the legitimacy of the rule; the choice to strike down the rule or apply the principle of reasonable accommodation should be dependent on the context, identity of the affected parties, and the nature of the rule; the numerical strength of those affected by an apparently neutral standard, whether a single person or a group, should be irrelevant when considering the decision to strike down the rule or allow it to stand, as long as discrimination is made out on a protected ground(s).