Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment

It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself. In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms, that giveaway can be seen at page 39 of the judgment, where the Full Bench frames four questions for consideration. The second question reads: “Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?

It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody could ask, given how absurd it is: whether a school uniform is itself unconstitutional. But that framing allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab alongside a school uniform is consistent with the broader goals of constitutionalism and education – with the sanctity of the uniform itself. A close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page, topped off by the extraordinary remark on page 88, where the Court says that “no reasonable mind can imagine a school without a uniform.” The unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very idea of a school uniform, and that allowing the former would destroy the latter. Respectfully, this elision leads the Court into misconstruing and misapplying a range of settled constitutional principles, and for those reasons, the judgment ought to be overturned on appeal.

Introduction

First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential religious practice” under Islam, and is therefor not insulated from the regulatory power of the State (pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those rights (pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against Muslim women students (pg. 96).

Essential Religious Practices

I do not want to spend too much time on the first argument. I have written before why framing the argument in terms of the essential religious practices test is unsatisfactory, both in general, but also specifically in this case, not least because it strips Muslim women of any agency in the matter, and essentially argues that the wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy the context of that choice may be), but is objectively compelled by the tenets of Islam. Additionally, there is nothing particularly noteworthy about the Court’s analysis of this point, either way: surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab. Under the essential religious practices doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have pointed out – that neither the Court, nor external commentators, are particularly well-placed to conduct this analysis). Having established this, the Court is therefore able to hold that, as a matter of religious freedom, the right to wear the hijab is not insulated from State regulation.

There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the language of religious compulsion. This is particularly ironic when we think of the right as the “right to religious freedom”; the blame there, however, lies squarely with the essential religious practices test, as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of mirrors until that test is overruled.

Freedom of Expression and Privacy

Let us now come to the argument where, in my respectful submission, the Court’s analysis is mistaken. Previously, on this blog, it has been argued that the freedom of expression and the right to privacy are important rights implicated by this case. To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India, dress can, on certain occasions, and depending upon the context, be a form of “symbolic expression” that is protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been argued in the linked posts). The application of the right to privacy – in terms of decisional autonomy – is also evident. Note that the freedom of expression and privacy arguments are not cleanly separable from the religious freedom arguments: indeed, it could well be – in certain cases – that the very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence of a beleaguered identity.

Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. Proportionality requires, among other things, that the State adopt the least restrictive method in order to achieve its goals. Thus, where something less than a ban would suffice, a ban is disproportionate. The proportionality framework provides the broad intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted the test of reasonable accommodation. Reasonable accommodation requires the Court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the State (or private party), without the activity in question losing its character. In case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.

How does the Court respond to the argument? The reasoning is somewhat scattered in different parts of the judgment, but drawing it all together, this is how the Court’s argument goes:

  1. Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker (page 99).
  2. The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
  3. Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription of the hijab is reasonable.

With respect, this analysis is flawed. It is true that in US jurisprudence – such as the O’Brien judgment – visible manifestations of expression (such as clothing) can be regulated by the State; however, that is in the context of the American First Amendment, which in cases of State restriction upon speech, is more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation, that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours, whether speech is verbal or a visible manifestation, the test remains the same. This flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a) of the Constitution.

Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not undertake a genealogy of the phrase. At one point, it lists “schools, courts, war rooms, and defence camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth unites a classroom and a defence camp; but in my view, it is in any event a misreading of the NALSA judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”. Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a right to symbolic expression – as manifested through dress – is to recognise that our “public” is diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights) is to be affirmed and not censored.

But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to the reasonable accommodation claim is that the hijab cannot be accommodated because it would deprive the uniform of its uniformity. At page 107, it notes that:

The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.

But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society; what the reasonable accommodation (and proportionality) analysis requires of the Court is to ask whether accommodation is such that it would undermine or otherwise destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of education. The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying education; instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal), it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself. Thus, by mixing up levels of analysis, the Court’s proportionality and reasonable accommodation analysis is constitutionally incorrect. And the root of this error – as I have pointed out above – is the Court’s assumption that education is uniform – that “no reasonable mind can imagine a school without a uniform.”

Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves constitutional secularism.” But this is inconsistent with the Court’s own analysis in a previous part of its judgment, where it notes that the Indian concept of “positive secularism” does not require the proverbial “wall of separation” between religion and State, but is much more accommodating towards religious pluralism within the overarching public sphere. On page 97, the Court holds that the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly misconceived.” But the Court provides no citation or source that the goal of education – note, not the goal of a uniform, but the goal of education – is uniformity at the cost of pluralism. On page 101, the Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of “unity in diversity”. Ironically, after ridiculing this as a platitude, the Court immediately afterwards cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!

Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in Regina v Governors of Denbigh High School, where, in paragraph 97 of her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic, religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes on to note in paragraph 98, which is this:

It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.

The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment: Denbigh involves an extensive discussion about how schools in plural and diverse societies should accommodate difference instead of insisting upon uniformity; and the correct question to ask – which is always a contextual question – is at what point does reasonable accommodation tip over into a demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a school was a good example of reasonable accommodation!

In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating the Court’s judgment is no fear at all. On page 105, the Court notes:

An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.

But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is actually fairly straightforward – and well within the domain of judicial competence – to examine cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical parade of horribles to deny a constitutional right is not good judicial practice.

Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is made abundantly clear by the next case that it discusses: the South African judgment in MEC for Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p. 108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not the point I want to make here: the point I want to make is that the “extreme argument” that the Court articulates – where everyone would ask to choose their own attire, and there would be general chaos – is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it distinguishes between the hijab and the nose-stud.

Non-Discrimination

Earlier on this blog, detailed arguments were made about how the hijab ban violates the constitutional guarantee of non-discrimination. The Court addresses this argument very briefly, noting only that the proscription – based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately, while this argument applies to direct discrimination, it does not apply to indirect discrimination, where facially neutral rules and regulations have a disproportionate impact on different people. The doctrine of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of Indian jurisprudence.

In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that shows how indirect discrimination is squarely applicable to the present case. The Court’s distinction between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example, in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate impact, in this case, grounded at the intersection of religion and burden. In my respectful view, the Court’s failure to consider this ground at all provides another compelling reason for why this judgment should be set aside on appeal.

Addendum: A Case of Conscience

From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a claim based on the freedom of conscience, then it needs to be specifically pleaded, with the acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression.

What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses the phrase “matters of conscience.” It is important to note that conscience might flow from religious convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way, the clean-cut separation that the Court attempts between conscience and religious freedom is, in my respectful view, unsustainable – and might materially have altered the outcome of this case.

Conclusion

There are two important things to note, by way of conclusion.

The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school premises, but classrooms). It notes this specifically on page 124, after some rather (in my view) unfortunate remarks about how banning the headgear is emancipatory “for women in general, and Muslim women in particular”: it notes that:

It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.

The scope, thus, is limited to classrooms.

Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case; secondly, it misapplies the reasonable accommodation test, and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education; thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women; and fourthly, it wrongly elides freedom of conscience and religious freedom. This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights. I submit that a correct calibration calls upon us to recognise that educational spaces in a plural and diverse society ought to reflect its plurality and diversity, and facilitating the freedom of choice and expression is one crucial way to achieve that. Such an approach is more consistent with our Constitution.

Guest Post: The Hijab Case through the Lens of Intersectionality

[This is a guest post by M. Jannani.]


In my previous post, I had analysed judgments delivered by the Kenyan courts in Mohamed Fugicha v. Methodist Church and how they had applied of the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the uniform, issued by a school in Kenya. I had also discussed how the Kenyan courts had applied the indirect discrimination test laid down in the Sarika case. In this blog, I take a step further and argue why the Hijab case would benefit from the import and application of the Sarika test by Indian courts. The first part of my essay will discuss why the direction issued by the pre-university education department of the Karnataka government has the effect of intersectional discrimination upon female Muslim students. The second part will discuss why the indirect discrimination tests laid down in Fraser v. Canada or Griggs v. Duke Power Company should not be applied by the court to the Hijab case. In the third part, I examine how the principle of reasonable accommodation interacts with the doctrine of indirect discrimination and its relevance to the present case.

Intersectional discrimination

In Navtej Johar v. Union of India , Justice Chandrachud’s concurring opinion recognized that claims of discrimination can be made on more than a single ground under article 15 of the Constitution of India. This view was affirmed by the Supreme Court in Ravinder Kumar Dhariwal v. Union of India.  In Patan Jamal Vali v. The State of Andhra Pradesh the Supreme Court discussed in length the difference between single axis discrimination and intersectional discrimination. It also specifically held that:

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds.(Emphasis mine)

The restriction on female Muslim students from wearing the Hijab is one that has the effect of discriminating against them on account of both their religious and gender identities. This is best captured by the following excerpt from an article by Maleiha Malik titled Complex Equality: Muslim Women and the ‘Headscarf’ which explains how the restriction imposed by different governments on headscarves worn by Muslim women is not only an attack on their religion but also a form of gender-based discrimination:

“One reason that the gender aspects disappears within the analysis is because it uses single axis definitions of equality which are designed to focus exclusively on one ground of inequality, e.g. sex or religion or race. However, the discrimination that Muslim women suffer through headscarf bans operates at the margins of race, religion and gender. It is a form of intersectional discrimination which leads to a quantitative increase in the amount of discrimination; as well as a qualitative change in how multiple discrimination undermines Muslim women’s agency. The structure of single-axis equality, with its focus on symmetry and comparison, is inappropriate where there is more than one ground for discriminatione.g. sex and religion and race. Methods that treat equality around a single axis as an either/or choice between criteria such as gender and religion are inadequate for addressing acute and subtle form of intersectional discrimination. The need for a single hypothetical comparator within single axis equality forces a stark choice. If gender is chosen then majoritarian definitions of woman may marginalise the needs of Muslim women. If religion is preferred then this often reflects the needs of the Muslim man as the representative of religion rather than Muslim women. Complex equality, unlike single axis equality, is an alternative formulation of the problem which changes the frame for analysing patriarchy. As well as examining gender oppression by Muslim men within minority Muslim communities, complex equality also takes into account the power of the state and majority women vis a vis Muslim women.” (Emphasis mine)

Therefore, the Karnataka notification which in effect restricts female Muslim students from wearing Hijabs along with their uniforms has a discriminatory effect that intersects at least with two personal identities- gender and religion. Hence, the restriction is one that has an effect of intersectional discrimination.

The courts should avoid the application of the tests laid down in Fraser or Griggs to the Hijab case

I will start by acknowledging that the doctrine of indirect discrimination is in its nascent stages of legal development in India. But that shouldn’t stop the courts from applying the doctrine of indirect discrimination to the Hijab case which is a textbook case of indirect discrimination – one where the restrictions may seem facially neutral, but has a disparate impact on female Muslim students who wear the Hijab. The Indian Courts on the question of indirect discrimination have relied on the Fraser v. Canada and Griggs v. Duke Power Company, as had been mentioned in a previous essay on this blog. I argue, why the courts should not apply the two tests in this specific case.

As I had mentioned in the previous section, the current case is one that involves a group of persons (female Muslim students) who face discrimination due to their intersecting identities. In Griggs v. Duke Power, the question before the Supreme Court of the United States of America was whether the employment requirements had a disparate impact on African-Americans because of their race. In the case of Fraser v. Canada, the Supreme Court of Canada evolved the indirect discrimination test in a case where a pension plan had an effect of adverse impact discrimination on women. Thereby, it can be observed that the courts in these two cases have evolved the test in the specific context where the individuals have been subjected to indirect discrimination on a singular aspect of their identity i.e., race or gender.

These tests have been applied by the Indian Courts primarily in cases of indirect discrimination where a group of persons or an individual has been subjected to discrimination on the basis of one factor of their identity. For example, in Nitisha v. Union of India (where the Supreme Court applied the Fraser test), the court looked into whether the requirement laid down for women to attain permanent commission in the Indian Army was one that had the effect of gender-based discrimination. Similarly, in Madhu v. Northern Railways (where the Supreme Court applied the disparate impact principles laid down in Griggs v. Duke Power) the Delhi HC looked into indirect discrimination where the discriminating factor was only gender.

On the other hand, In Patan Jamal Vali v. State of Andhra Pradesh, the Supreme Court remarked on the dangers of courts adopting a legal analysis which looks at discrimination only through a single axis in cases where an intersectional approach is required. The relevant parts of the judgment are as follows:

“A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”. Laws tend to focus on a singular identity due to the apparent clarity a monistic identity provides in legal analysis where an individual claiming differential treatment or violence can argue that “but for” that identity, they would have been treated in the same way as a comparator. Therefore, their treatment is irrational and unjustified.

By exhibiting attentiveness to the ‘matrix of domination’ created by the intersecting patterns at play, the Court can more effectively conduct an intersectionality analysis. A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.(Emphasis supplied)

Thereby, tests laid down in Fraser or Griggs which have been formulated in a context where the affected persons were subjected to discrimination on a single factor of their identity should not be applied to the Hijab Case wherein the persons are being exposed to indirect discrimination due to their intersectional identities. If either of the two tests are applied to the latter case it renders invisible the discrimination faced by the female Muslim students by putting them into a homogenous religious group of ‘Muslims’ and does not acknowledge the specific dimension of oppression that interacts with their religious and gender identity. 

The present case demands for the import of the test laid down in the Sarika judgment

In the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School , the England and Wales High Court examined whether a girl student from a minority religious community in the region i.e., the Sikh community, was subjected to indirect discrimination. As one can notice, the judgment begins with a recognition of how ‘school girls’ had lost cases before the court where they exerted their right to wear articles of faith along with their school uniform. The judgment also recognises her gender and religious identification, and addresses her as a ‘Sikh girl’ or ‘Sikh school girl’, resulting in acknowledging her intersectional identity. Similarly, the Kenyan Court of Appeals decision in Mohamed Fugicha v. Methodist Church looked into the question of indirect discrimination in a case where hijabs were restricted due to which a certain groups of students faced indirect discrimination. The group in this case were female Muslim students who were affected by the discrimination due to their intersectional identities (religion and gender). The Kenyan Court of Appeals applied the test laid down in the Sarika judgment. Though the courts may not have explicitly addressed the aspect of intersectional discrimination of persons in these cases, they have applied the specific test to recognise the indirect discrimination, where they have identified the groups with their intersectional identities as either ‘Sikh school girl’ or ‘female Muslim students’ as the case maybe. Thereby, Sarika test is more appropriate to cases where the doctrine of indirect discrimination is invoked with respect to persons who may be disparately impacted due to their intersecting identities since they formulated and applied in such contexts.

The Sarika judgment and the Essential Religious Practices Test

The judgment in Sarika referred to the following factors laid down in the case of R (Williamson and others) v Secretary of State for Education [2005] 2AC 246 to access whether a religious belief in the case was one that was genuine:

(a) …when the genuineness of a claimant’s professed belief is in issue in the proceedings, the court will inquire into and decide this issue as an issue of fact…”;

(b) …the court is concerned to ensure an assertion of religious belief is made in good faith ‘neither fictitious, nor capricious and that it is not an artifice’…”;

(c) …emphatically it is not for the court to embark on an inquiry into the asserted belief and judges its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of other professing the same religion…”; and that 

(d) …the relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

It can thereby be seen that the third factor for accessing whether a religious belief is genuine expressly states that the court should not embark on an inquiry and judge such a practice on the metric of some objective standard such as the source of the material upon which the person based their religious belief on. Similarly, Kenyan Court of Appeals while applying the Sarika test in Mohamed Fugicha held:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

Therefore, if the Sarika test is applied to the Hijab case, to prove the whether the belief is genuine in the case a claim of indirect discrimination is brought, the court will only need to look into whether the belief is genuinely held. It need not apply the Essential Religious Practices test.

Reasonable Accommodation and Indirect Discrimination

In NALSA v. Union of India, the Supreme Court recognized that the principle of non-discrimination goes beyond the prevention of discrimination and extends to remedying systemic discrimination that persons may suffer due to their identities. One such remedy is the notion of ‘reasonable accommodation’.  The following is the relevant portion of the judgment:

In international human rights law, equality is found upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of the TGs, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable 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.

In Madhu v. Northern Railways, while addressing the aspect of indirect discrimination the Delhi High Court referred to the following excerpt from the judgment in Jeeja Ghosh v. Union of India:

“Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society.”

It is important to interpret this reference by understanding what the judgment in Jeeja Ghosh addressed. The Supreme Court in Jeeja Ghosh recognised the principle of reasonable accommodation for disabled persons (who were systematically discriminated in this case) in a bid to remedy discrimination that they had faced. It also mentioned that such reasonable accommodation has to be made in the interest of substantive equality.  Therefore, when the Delhi High Court in Madhu referred to this specific excerpt, it in effect recognised that remedying discrimination also includes within it allowing reasonable accommodation to those groups that face systemic discrimination beyond the realm of disability.

Similarly, in Nitisha v. Union of India, the court mentioned, while referring to the judgments in Jeeja Ghosh v. Union of India and Vikas Kumar v. UPSC, that the Supreme Court has recognised reasonable accommodation as a ‘substantive equality facilitator’ while discussing indirect discrimination. Thereby it can be noticed that the courts have acknowledged the need for the principle of reasonable accommodation to be applied to cases involving indirect discrimination for the realisation of substantive equality.

The Supreme Court in Ravinder Kumar Dhariwal v. Union of India held that the initiating disciplinary proceedings against a mentally disabled person (in the said factual background) amounted to indirect discrimination. The judgment referred to the case of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, and recognised that in case prima facie discrimination exists, the burden shifts on the person or entity who discriminates to justify the discrimination and to prove that it did indeed provide for reasonable accommodation. The Supreme Court used this three stage test while discussing indirect discrimination. The relevant extract is as follows:

In British Columbia (Public Service Employee Relations Commission) v. BCGSEU 83, the Canadian Supreme Court held that once it is established that prima facie discrimination exists, the burden shifts on the employer to justify the discrimination, which involves proving that it provided reasonable accommodation. The court developed a three-stage test based on proportionality to determine whether an employer may use the bona fide occupational requirement.

Thereby, the burden in the present case, will fall on the relevant authorities of the Karnataka government to prove that measures to allow reasonable accommodation were provided for the students who are at the receiving end of the discrimination. It must however be kept in mind that Indian Courts have explicitly recognized the principle of reasonable accommodation, for the most part, in cases relating to disability rights.

Conclusion

The judgments delivered by the Indian courts on indirect discrimination are a testament to transformative constitutionalism, one where the courts have not hesitated to borrow from other jurisdictions in order to ensure that there is not a formalistic interpretation of equality. Even though the Supreme Court of India has commented in certain judgments (such as Nitisha v. Union of India) on how the doctrine of indirect discrimination is at its nascent stages, one can observe that that hasn’t stopped the courts from using the doctrine in those cases or expanding the contours of the doctrine’s application with due regard to the specific nature of each case. Such a commitment to substantive equality, in my opinion, is only strengthened, when the unique nature of the interaction between indirect discrimination and intersectional discrimination is recognized in the Hijab case.

Guest Post: The Hijab Case through the Lens of Non-Discrimination – Lessons from Kenya

[This is a guest post by M. Jannani. Previous posts on the Hijab Case can be found here and here.]


Recently, the Karnataka State Government pre-university education department issued a direction invoking 133(2) of the Karnataka Education Act, 1933 which in effect restricted female Muslim students from wearing hijab in educational institutions that are under the its jurisdiction. The order reportedly stated that:

“Invoking 133 (2) of the Karnataka Education Act-1983 which says a uniform style of clothes has to be worn compulsorily. The private school administration can choose a uniform of their choice”

Though on the face of it, the notification may seem neutral, the point lies in disparate impact it has had on female Muslim students whose self-expression and religious practices have been jeopardised. This piece discusses the judgment of Fugicha v. Methodist Church in Kenya which used the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the usual uniforms prescribed by a school in Kenya. It also aims to contextualize the judgment’s relevance to the doctrine of indirect discrimination, which has already been recognized by Indian courts.

Background

On the 22nd of June 2014, there was a request made by the Deputy Governor of Isiolo county to allow Muslim girl students to wear hijab and white trousers in addition to the already prescribed uniform in St. Paul’s Kiwanjani Day Mixed Secondary School (“the school”). Approximately a week after the request was made, Muslim girl students wore both the hijab and white trousers along with the school uniform that was prescribed by the school. They were then asked to revert back to the dressing in the uniform that they had to wear before the request was made. The county director passed a decision that Muslim girl students should be allowed to wear the hijab and white trousers along with the school uniform. However, the Methodist Church in Kenya (“the Church”) opposed it and argued that this particular move allowed for preferential treatment of female Muslim students. It also termed the move as a violation of natural justice and the rule of law, while supporting the dress code that did not (according to it) permit the exhibition of religious symbols.

At the outset it is important to note that Constitution of Kenya expressly recognizes the right against indirect discrimination in article 27 which states as follows:

“27 (4) The state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another on any of the grounds specified or contemplated in clause (4)”.

Given this background, the Kenyan Courts, among other questions in the present case, were tasked with the role of examining whether the banning of hijabs in schools amounted to an act of indirect discrimination, which violated article 27 of the Kenyan Constitution.

Decision of the High Court

The High Court observed that the Republic of Kenya is a secular country and since article 8 of the Kenyan Constitution states that there cannot be a state religion, the school was not justified in allowing female Muslim students to wear a hijab. It also stated that they should revert back to the uniform. The judgment further held that not having such restrictions on the uniform for female Muslim students would amount to preferential treatment over their non-Muslim peers.

In my opinion, the court terming the move to allow female Muslim students to wear hijabs being called special or preferential treatment was erroneous and ran contrary to the principles of indirect discrimination. These principles were, for instance, laid down by the judgment of the Constitutional Court of South Africa in MEC for Education: Kwazulu-Natal v. Navaneethum Pillay. In this case, a girl student wore a nose stud (which formed a part of her cultural belief as a Hindu) to her school. Her school found it to be a violation of the uniform dress code and objected to her wearing the nose stud. This restriction was constitutionally challenged. The Constitutional Court of South Africa held that such restrictions would have an effect of indirect discrimination on those whose cultural practices are compromised. The relevant extract of the judgment is as follows:

“It is those learners whose sincere religious or cultural beliefs or practices are not compromised by the Code, as compared to those whose beliefs or practices are compromised. The ground of discrimination is still religion or culture as the Code has a disparate impact on certain religions and cultures. The norm embodied by the Code is not neutral, but enforces mainstream and historically privileged forms of adornment, such as ear studs which also involve the piercing of a body part, at the expense of minority and historically excluded forms. It thus places a burden on learners who are unable to express themselves fully and must attend school in an environment that does not completely accept them. In my view, the comparator is not learners who were granted an exemption compared with those who were not. That approach identifies only the direct effect flowing from the School’s decisions and fails to address the underlying indirect impact inherent in the Code itself.”

Decision by the Kenyan Court of Appeals

The Court of Appeals in Mohamed Fugicha v. Methodist Church in Kenya looked into whether the restriction on wearing hijabs was a violation of article 27 of the Kenya’s Constitution. To determine whether the restriction on female Muslim students wearing hijabs on their uniforms was an act of indirect discrimination, the court imported the test that was laid down in the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School. In the case of Sarika, the English and Wales High Court looked into whether a Sikh girl student could be restricted from wearing a Kara, which was of immense significance to her faith. The following four step test was laid down in the Sarika judgment, and was affirmed by the Kenyan Court of Appeals :   

“(a)  to identify the relevant ‘provision, criterion or practice’ which is applicable;

(b) to determine the issue of disparate impact which entails  identifying a pool for the purpose of  making a  comparison of the relevant disadvantages;

(c) to ascertain if the provision, criterion or practice also  disadvantages the claimant personally;

(d) Whether this policy is objectively justified by a legitimate aim; and to consider, if the above requirements are  satisfied, whether this is a proportionate means of achieving a legitimate aim.”

When applying the above test, the Kenyan Court of Appeals firstly stated the relevant practice to be considered was the restriction imposed by the school on female Muslim students wearing hijab along with their uniform. The court then observed that the ‘pool’ in this case comprised of the female Muslim students and the ‘comparator group’ consisted of the non-Muslim student body. In this context, it made the observation that unlike the ‘pool’, the comparator group’s compliance with the school’s uniform rules did not subject them to disadvantage which was violative of their religious practices and beliefs. While looking into whether the criterion or practice disadvantages the claimant personally, the court held that the ban on wearing hijabs that existed in the school was one that compromised and curtailed their religious beliefs that were of exceptional importance to the individual. While upholding that the restriction constituted an act of indirect discrimination under the Sarika test, the court expressly stated that:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

The Court of Appeals also referred to the judgment of the Constitutional Court of South Africa in City Council of Pretoria v. Walker to hold that though the rules on the uniform dress code may be perceived as neutral, the still may have a discriminatory effect. The relevant portion of the judgment states as follows:

“The inclusion of both direct and indirect discrimination, within the ambit of the prohibition imposed by section 8(2) of the Constitution, evinces a concern for the consequences rather than the form of conduct.  It recognizes that conduct which may appear to be neutral and non-discriminatory may nonetheless result in discrimination and, if it does, that it falls within the purview of section 8(2) [our Article 27(4)] of the Constitution.”

It was therefore held even though the uniform dress policy was one that appeared to be neutral, by not allowing female Muslim students to wear the Hijab, it amounted to an act of indirect discrimination. This constituted a violation of article 27, Constitution of Kenya. The Kenyan Court of Appeals, thereby, proceeded to outlaw the restriction on wearing hijabs on uniforms.

Decision by the Kenyan Supreme Court

The decision given by the Kenyan Court of Appeals in Mohamed Fugicha v. Methodist Church was appealed before the Supreme Court of Kenya. The majority set aside the judgments of both the High Court and the Court of Appeals on the procedural ground that there was no proper cross-petition to be determined by the courts. The minority opinion delivered by Chief Justice Ojwang termed the view of the Appellate Court in the interpretation of indirect discrimination as ‘appositely pragmatic and rational’ while also holding that it reflects the desirable judicial stand.

Recognition of Indirect Discrimination by Indian Courts

Last year, the Supreme Court in Nitisha v. Union of India applied the doctrine of indirect discrimination while holding that women army officers being denied Permanent Commission (“PC”) by the Indian Army was discriminatory. Through the judgment it acknowledged that though certain rules or laws appear to be neutral they may have a disparate impact on certain groups/ communities of people due to their identities. While doing so, the Supreme Court of India, similar to the Kenyan Court of Appeals, referred to the Constitutional Court of South Africa’s judgment in City Council of Pretoria v. Walker. A similar reference to the decision of the South African court was made in the decision of Madhu v. Northern Railways. which also looked into the doctrine of indirect discrimination.  Thereby, it can be observed that the Indian courts have not hesitated in borrowing the interpretation of the indirect discrimination from jurisdictions that have expressly recognised. However, to determine whether an act constituted indirect discrimination, the Supreme Court in Nitisha had adopted the Fraser v. Canada test as opposed to the test laid down in Sarika which had been adopted by the Kenyan Court of Appeals.

Conclusion

Though the Kenyan Court of Appeals judgment in Methodist Church in Kenya v. Mohamed Fugicha was set aside by the Supreme Court of Kenya (albeit not on the merits), it can be seen that the Court of Appeal’s interpretation of the doctrine of indirect discrimination in the specific context of the restrictions on wearing hijabs over uniforms is one that is extremely relevant. The doctrine of indirect discrimination plays an important role in opposing state action that may have a perversely disproportionate impact on those who face intersectional discrimination as has been demonstrated by the Kenyan Court of Appeals. The application of this doctrine by the Indian Courts in the way the Court of Appeals did to outlaw the restriction on hijabs will, in my opinion, be of critical importance to the realization of substantive equality.

Notes from a Foreign Field: The South African Constitutional Court on the Rights of Domestic Workers

Last week, the South African Constitutional Court handed down an important judgment concerning the rights of domestic workers. In Mahlangu v Minister of Labour, the question before the Court was whether the exclusion of domestic workers from South Africa’s social security law – the COIDA – was unconstitutional. The Court unanimously answered that it was. The majority judgment, in particular,  repays careful study, as it advances constitutional jurisprudence in relation to inter-sectionality, indirect discrimination, and dignity, in important directions.

In this post, I do not consider the challenge based on Section 27 of the South African Constitution, that guarantees the right to social security. I will consider, instead, the equality and dignity challenges.

Equality and Non-Discrimination

It was argued that the blanket exclusion of the entire class domestic workers from the scope of the COIDA violated the right to equal treatment, and amounted to unfair discrimination against them, in contravention of Section 9 of the South African Constitution. As far as the right to equal treatment went, the government conceded the case at the bar, and the Court therefore returned a finding that the exclusion of domestic workers was irrational and served no discernible legislative goal.

Let us focus, therefore, on the unfair discrimination argument, centred around Section 9(3) of the South African Constitution. Section 9(3) prohibits direct and indirect discrimination on a number of familiar grounds (race, sex, sexual orientation, religion, and so on). “Domestic work” is not a listed ground under Section 9(3), and so this was not a case of direct discrimination. The Court found, however, that the exclusion constituted a case of indirect discrimination:

… because, as the applicants and amici submit, domestic workers are predominantly Black women. This means discrimination against them constitutes indirect discrimination on the basis of race, sex and gender. (para 73)

Note, however, that race, sex and gender are multiple grounds. This, therefore, took the Court into the concept of inter-sectionality, which it defined as the acknowledgment that “that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play.” (para 76) Consequently:

It is undisputed between the parties that domestic workers who are in the main Black women, experience discrimination at the confluence of intersecting grounds. This simultaneous and intersecting discrimination multiplies the burden on the disfavoured group. (para 84)

It was evidently clear, therefore, that (a) a predominant number of domestic workers were black women, and (b) black women were located at intersecting axes of discrimination. This is what set apart the exclusion of domestic workers, as opposed to the exclusion of defence forces or the police (who, in any event, had access to other social security schemes):

Multiple axes of discrimination are relevant to the case of domestic workers. Domestic workers experience racism, sexism, gender inequality and class stratification. This is exacerbated when one considers the fact that domestic work is a precarious category of work that is often undervalued because of patronising and patriarchal attitudes. (para 90)

Indeed, in this case, as the Court observed, the reason why domestic workers were predominantly black women was itself founded at the intersection of racial and gender discrimination, at the time of apartheid:

The combination of influx control laws and the migrant labour system also had a particularly onerous effect on Black women. Taken together, they restricted the ability of Black women to seek and obtain employment opportunities, thus rendering them dependent on absent husbands or sons. Essentially, this all sedimented a gendered and racialised system of poverty, that was particularly burdensome for Black women. (para 98)

Consequently, their present exclusion from COIDA amounted to nothing more than a continuation of the same intersectional discrimination (para 100). For this reasons, the Court therefore held that the right against unfair discrimination had been breached.

Dignity

The Majority’s dignity analysis was very interesting. In brief, it noted that the reason why domestic work, alone, had been excluded from the protective scope of the COIDA was because it was not considered to be “real work”, as traditionally understood. This attitude towards domestic work was rooted in patriarchal assumptions. As the Court noted, therefore:

Historically, in varying contexts across the world, domestic work has generally not been regarded as real work and has been undervalued for that reason. In the American context, it has been argued that the historical undervaluation of domestic workers stems primarily from the gendered and racialised nature of those who have traditionally done this work, namely African-American women. To this end, domestic work there has been undervalued for two reasons. First, it has been described as work done by a “despised race”. Second, it has been regarded as “women’s work” or a “labour of love” having no economic currency. (para 110)

This, when combined with the exploitation built into domestic work, therefore made it clear that “the exclusion of domestic workers from COIDA is an egregious limitation of their right to dignity, alongside its infringements on their other constitutional rights. It extends the humiliating legacy of exclusion experienced during the apartheid era into the present day, which is untenable.” (para 115)

Analysis

The Constitutional Court’s judgment highlights the importance – and indeed, the indispensability – of paying close attention to context in any equality and discrimination-oriented examination. The Court’s inter-sectionality and dignity analysis was rooted in context – both the historical context that was responsible for compelling a disproportionate number of black women into domestic work, and the continuing context of how intersecting axes of disadvantage worked against them. Grounding domestic workers’ exclusion within this context was what allowed the Court to find that there existed both indirect and inter-sectional discrimination, as well as a violation of dignity.

The judgment is also important because – if we bracket the Section 27 analysis – what was at issue was not discrimination in its traditional sense (such as, say, different pay for men and women), but that legislation had not extended its benefits to a discrete category of work (domestic work). Historically, Courts have been reluctant to expand the scope of protective laws simply on the basis that certain categories are not within their scope, as that has been considered to be a matter of policy. The Constitutional Court’s application of the discrimination and dignity framework, however, dispensed with any such objections, as the very fact of exclusion was grounded within clear constitutional prohibitions.

This is important for a third reason: labour law – with its inclusions and exclusions – has often been considered to be an autonomous domain, with constitutional principles exercising weak scrutiny, at best. The Constitutional Court’s judgment demonstrates how rigorously testing labour law upon the touchstone of the Constitution will ensure that the rights of the most vulnerable are not left to the mercy of arbitrary legislative classifications (whether it was the exclusion in this case, or otherwise artificial definitions of “employees” or “employment relationships”, which equally serve to limit access to labour rights).

The advances made by the Constitutional Court in the domain of inter-sectionality, indirect discrimination, and dignity, are worthy of emulation. In 2018, in Navtej Johar, the Supreme Court gestured towards inter-sectionality, and various High Courts have tentatively begun to articulate the concept indirect discrimination. It remains for the Courts to firmly embed these concepts into our equality and discrimination jurisprudence. It is also crucial for Courts to make clear that labour law is a critically important terrain for actualising constitutional values, and that differential or discriminatory access to labour rights raises serious constitutional concerns. Here again, the judgment of the South African Constitutional Court shows the way.

 

 

 

 

 

 

Guest Post: Navtej Johar v Union of India – On Intersectionality (We’re not quite there yet)

(This is a guest post by Gauri Pillai).

The theory of intersectionality, within feminist jurisprudence, views individual identity as arising from an interaction of several grounds, such as caste, sex, disability, age, religion, race, sexual orientation etc. Originating in the context of understanding the identities of Black women as being shaped by both gender and race, the theory recognises that women are not a monolith, facing a single form of oppression; instead their multiple social identities interact, resulting in unique forms of marginalisation. Intersectional discrimination therefore signifies discrimination suffered on the basis of more than one personal characteristic. Such discrimination is not merely a sum or overlap of discriminatory treatment experienced due to individual grounds, but is instead characterised by a “uniqueness and sharedness” arising from the intersection of the various grounds. For instance, a Dalit woman with disabilities shares experiences of discrimination with persons with disabilities, Dalit individuals and other women. However, she also faces a distinctive form of discrimination due to the interaction of her multiple identities, which is more than a mere combination of discrimination on account of disability, caste and sex/ gender.

Article 15(1) of the Constitution of India reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. In interpretation of this provision, courts have placed emphasis on the word “only” to imply that only discrimination on a single ground is suspect under Article 15, thus excluding intersectional discrimination from its scope. For instance, the Calcutta High Court in Mahadeb v Dr BB Sen held, “The impugned law must be shown to discriminate because of sex alone. If other factors in addition to sex come into play in making the discriminatory law, then such discrimination does not, in my judgment, come within the provision of Article 15(1) of the Constitution”. In Dattatraya Motiram v State of Bombay, the Bombay High Court accepted a form of discriminatory treatment as constitutionally valid, arguing, “If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations”. This trend was confirmed in Air India v Nergesh Meerza, where the Supreme Court stated, “[W]hat Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.

However, previously on this blog, Shreya Atrey has argued that this misinterprets the meaning of the word “only”. Relying on the placement of this word within the text of Article 15(1), which says “on grounds only of” rather than “only on grounds of”, Atrey points out that the word “only” refers to the inappropriateness of certain personal characteristics or grounds being relied on as the basis of discrimination, and does not indicate the requirement of single-ground claims. Further, interpreting “only” to permit solely claims invoking a single ground of discrimination is a partial reading of Article 15(1), omitting to taking into account the phrase “or any of them” which would allow claims to be made under several grounds.

Justice Chandrachud’s concurring opinion in Navtej Singh Johar v. Union of India dismisses the reliance placed on “only” by cases like Nergesh Meerza as a “formalistic interpretation of Article 15” which would render the “constitutional guarantee against discrimination meaningless” [Chandrachud J., 36]. Though Chandrachud J. does not offer a reinterpretation of the text, as suggested by Atrey, the Court does state that discrimination based on “sex and another ground (‘sex plus’)” would fall within the ambit of Article 15 [Chandrachud J., 36].

This seems to indicate clear judicial approval for the theory of intersectionality. However, Chandrachud J. bases his observations on the need for recognising intersectional discrimination under Article 15(1) on a critique of Nergesh Meerza, holding that the approach adopted by the court in the case was incorrect since it failed to adopt an “intersectional understanding of how discrimination operates” [Chandrachud J., 41]. A close reading of Nergesh Meerza, on the other hand, shows that the case concerned discrimination solely on ground of sex. Nergesh Meerza involved a challenge to certain provisions of the Air India Employee Service Regulations, which created significant disparity between male and female crew with respect to service conditions. The Supreme Court, relying on these very differences in service conditions between men and women, dismissed the claim under Article 15(1), stating the discrimination was on ground of “sex coupled with other considerations”. The Court however failed to question the basis on which these “other considerations” were differentially allotted. As Bhatia argues, especially after finding that the nature of work performed by male and female members was similar, the Court should have held that the initial classification, relying on which these “other considerations” were decided, was based on sex. As pointed out by the female crewmembers in Nergesh Meerza, “the real discrimination was on the basis of sex which was sought to be smoke screened by giving a halo of circumstances other than sex”.

Thus, the dictum of the Supreme Court in Nergesh Meerza was certainly incorrect. However this was not due to a failure to account for intersectional identities of women. Rather, it was because the Court did not recognise that the constitution of the separate cadres and fixing of differential service conditions were themselves based on sex, such that the “other considerations” which the Court declared, when coupled with sex, excluded the claim from the scope of Article 15, were products of sex discrimination. Nergesh Meerza is thus not an example for a “sex plus” claim of discrimination; instead it is a case of sex discrimination where the Court omitted to consider that the “other considerations” were also incidents on discrimination on ground of sex.

The Supreme Court, in Navtej Johar, reversed this trend by stating that if the “other considerations” being relied on are stereotypical understandings of the notions of sex, or factors which have a disparate impact on the members of one sex, these cases would not be distinguishable from discrimination solely on ground of sex. For instance, citing Anuj Garg v. Union of India, the Court pointed out that stereotypes regarding socially ascribed gender roles cannot be used as plus factors to argue that discrimination was not only on ground of sex [Chandrachud J., 41]. Similarly, a rule that only people six feet or more in height would be employed in the army cannot be excluded from the ambit of Article 15(1) as being based on sex and height, since height is often an incident of sex, and classification on the basis of height would have a “disproportionate impact” on women [Chandrachud J., 36]. In this manner, the Chandrachud J. in Navtej Johar deviated from the dictum in Nergesh Meerza, where the Court adopted a formalistic interpretation of sex discrimination as a facial classification between men and women, relegating the other manifestations of sex discrimination to “other considerations”.

To this extent, the approach of the Court in Navtej Johar (through the opinion of Chandrachud J.) represents a welcome shift in the interpretation of “only” under Article 15(1). Atrey argues that the technical interpretation of “only” relied on so far by courts excludes both a contextual and an intersectional analysis of discrimination. By going beyond cases of facial classification between men and women to include other manifestations of sex discrimination- such as the use of stereotypes- the Court in Navtej Johar places sex discrimination within the existing socio-political context by including within the ambit of Article 15(1) the gendered aspects of sex discrimination. In this way, the Court brings in a contextual lens to the analysis of discrimination under Article 15. However, the examples relied on by the Court, as identified above, are incidents of discrimination on ground of sex, rather than intersection of sex with other grounds such as race, disability, age etc. This implies that the Court in Navtej Johar did not go the entire way in recognising intersectional discrimination, despite references to the intersectional nature of sex discrimination [Chandrachud J., 36, 41].

Adopting a more holistic view of sex discrimination, as the Chandrachud J. has done in Navtej Johar, is different from acknowledging the unique forms of oppression created by the intersection of multiple identities, of which sex is only one. For instance, in Shayara Bano v Union of India, the claim of discrimination was brought by Muslim women. Though the decision of the Supreme Court in the case has been critiqued (here and here) for failing to account for intersectional discrimination, the case illustrates how multiple grounds- sex and religion- interact to create a distinctive form of disadvantage. Shayaro Bano is thus an example of a claim of intersectional discrimination; Nergesh Meerza is not. The Supreme Court in Navtej Johar appears to have conclusively established a contextual approach towards analysing claims of discrimination under Article 15(1) by rejecting the interpretation of “only” presented in cases like Nergesh Meerza. However, whether an intersectional lens, which would not just allow but also recognise the distinctiveness of a claim invoking multiple grounds under Article 15(1), has been adopted remains to be seen.

In sum, Justice Chandrachud’s judgment in Navtej Johar recognises the concept of contextual discrimination and acknowledges the concept of intersectional discrimination; however, his actual reasoning is limited to the former. For a judgment that incorporates the concept of intersectional discrimination within the framework of Article 15(1), we may have to wait a little longer.

(The writer has recently completed her BCL degree from the University of Oxford.)

Guest Post: Article 15 through the lens of intersectionality – II

(In this second essay of a two-part series, Shreya Atrey argues that a textual reading of Article 15(1) would imply that inter-sectional claims must fall within its ambit. Article 15(1) stipulates that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Whether or not inter-sectionality is covered by this wording would depend upon the meaning attributed to the phrase “on grounds only of…”)

In the last post I surveyed the unfavourable outlook of Article 15(1) jurisprudence towards multiple grounds of discrimination. This post proceeds to consider how this jurisprudence can be reconstructed to admit multiple grounds in a discrimination claim under Article 15(1). I argue that a legitimate interpretation of the phrase ‘on grounds only of’ neither makes Article 15(1) a closed list of grounds nor limits it to single ground discrimination; but instead is concerned with finding the basis of discrimination in enumerated or analogous grounds. On the other hand a quantitative delimitation to the general non-discrimination guarantee is: (i) ill-conceived within the contours of constitutional and discrimination law; (ii) historically unsupported in constitutional drafting; and (iii) semantically inaccurate. The final analysis thus proffers a qualitative reconstruction of the phrase by linking grounds to the basis or effects of discrimination.

First, there is internal inconsistency in case law as to the meaning of ‘only’ in Article 15(1). Besides referring to a single ground in a discrimination claim, ‘only’ has also been understood as prohibiting discrimination on enumerated grounds but no more, such that Article 15(1) signifies a closed list of grounds (i.e. religion, race, caste, sex, place of birth). The Delhi High Court decision in Naz Foundation v Delhi Administration introduced the ground of ‘sexual orientation’ as an analogous ground under Article 15(1) and thus has challenged the view that Article 15(1) is an exhaustive list of grounds. However, this cannot perforce mean that ‘only’ can be interpreted to mean discrimination on just one ground since Article 15 can now operate as an open list. In fact, I argue that both these quantitative views of Article 15(1) lack a justifiable basis. Yacoob J of the South African Constitutional Court supports such a dyadic reconstruction in his remarks on the Indian Constitution:

“It goes without saying that a poor Dalit deaf lesbian woman on a wheelchair is far more vulnerable and in greater need of constitutional protection than a female university teacher who has all her faculties and who is part of the “dominant” classes. If this is not recognised, constitutional jurisprudence could suffer. And there is no need to limit protection to the grounds expressly mentioned in the Constitution.”

Secondly, it is useful to note that nothing in the drafting of the Constitution indicates an original intent for interpreting Article 15(1) to exclude multi-ground discrimination. It neither indicates Article 15(1) as restricting the number of grounds in a claim or considering it to be a closed list.

Thirdly, it is helpful to take recourse to semantics here. According to the Oxford English Dictionary, the word ‘only’ can be used widely, and amongst its most popular uses include: (i) as an adverb meaning ‘Solely, merely, exclusively; with no one or nothing more besides; as a single or solitary thing or fact; no more than. Also, with a verb or verb phrase: no more than, simply, merely’; (ii) as an adjective with an attributive sense of being ‘unique’ in character, or ‘alone’ and; (iii) as a preposition meaning ‘except for’. Restating the language in clause (1): ‘no one shall be discriminated on grounds only of…’, it is clear that ‘only’ cannot possibly be an adjective in this sentence. This interpretation falls foul of the basic canons of English language where an adjective is used for naming an attribute of the immediately succeeding noun. Further, it could not have been used as a conjunction meaning ‘except for, but’ since that would totally inverse the meaning of the non-discrimination guarantee. Thus, the only possibility is of it being used as an adverb here. The question that remains is whether as an adverb it has a quantitative or a qualitative meaning. Does ‘only’ in the phrase ‘on ground only of’ signify ‘solely’, ‘singularly’, ‘uniquely’, ‘merely’, ‘exclusively’ in a qualitative sense such that it could mean that something is the exclusive cause of, or the sole basis of, or form the ground for a particular effect, or is uniquely relevant to a particular result; or the quantitative sense the single quantity one?

As an adverb, the positioning of ‘only’ in a sentence matters as OED indicates: ‘The traditional view is that the adverb only should be placed next to the word or words whose meaning it restricts: I have seen him only once rather than I have only seen him once.’ This explanatory statement is useful. It indicates that although there is free rein in using ‘only’ as a limiting adverb either before or after the object it seeks to limit, it should not be absurd or ambiguous in common usage. In its current positioning in clause (1), the word ‘only’ may qualify the immediately succeeding list of grounds or the term grounds just preceding it. But the fact that it is placed before rather than after ‘of’ in the phrase ‘on grounds only of’ diminishes the possibility of it limiting the list of grounds as such. On the other hand, if ‘only’ was meant to be used as ‘solely’ or ‘merely’ in the sense of limiting the number of grounds upon which a discrimination claim be based, it is clearly misplaced in the phrase ‘on grounds only of’.

A student of English language would then strip the phrase ‘on grounds only of’ of any quantitative sense. She would use ‘only’ as referring to ‘simply’, ‘merely’, ‘exclusively’ or ‘just’ such that it relates to the inadequacy or inappropriateness of certain grounds being invoked as the basis of discrimination. In the legal semantics of discrimination law this would mean that discrimination is prohibited when based on, for the reason of or because of these grounds: religion, race, caste, sex, place of birth (indeed, this is the understanding of discrimination in United States, UK and Canadian anti-discrimination legislation). Thus, the phrase can be taken to signify the basis of discrimination in grounds and does not either indicate a closed list or single-ground claims. In finding the basis of discrimination through ‘on grounds only of’, there is an emphasis on the causative (though the causation doesn’t need to be direct or strict and can be merely correlative as argued by Tarunabh Khaitan in A Theory of Discrimination Law) element in discrimination, i.e. something is discriminatory because it is based on certain grounds. It extends the inquiry into finding not just whether there was discrimination in treatment or in effect but that its basis was in certain kind of prohibited categories of identities.

Fourthly, the misinterpretation and misapplication of ‘on grounds only of’ in clause (1), a fundamental flaw in discrimination jurisprudence is the partial reading of the clause. The case law at no point engages in a complete meaning of the clause which ends with ‘or any of them’. This partial reading strips the prevailing jurisprudence of normative force. Re-interpreting clause (1) while reckoning with its full wherewithal including the phrase ‘or any of them’, stands as a clear indication of clause (1) covering multi-ground discrimination within its ambit.

The placing of ‘or’ in clause (1) is dispositive in this matter: ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth’ or ‘any of them’ indicates that the basis of discrimination can be any of the grounds, alone or in some combination. Once having interpreted ‘on grounds only of’ as finding the basis of discrimination—‘or’ can only logically settle for allowing multiple grounds to be the basis of discrimination. Given that ‘or’ may mean either ‘and/or’ in legal semantics, either construction leads to the recognition of discrimination on more than a single ground under clause (1).

In summary, a legitimate interpretation of ‘on grounds only of’ relates to finding the basis of discrimination in enumerated or analogous grounds by causally linking the discriminatory act or effect to the personal characteristics or group-identities of claimants based on grounds of discrimination.

(Shreya is completing her D.Phil in Law at the University of Oxford.)

Guest Post: Article 15(1) Through the Lens of Intersectionality – I

(Previously on this blog, we have discussed the meaning of the phrase “on grounds only of…” in Article 15(1) of the Constitution. In a two-part guest post series, Shreya Atrey discusses the possibility of a discrimination jurisprudence that is sensitive to the claims of intersectionality, notwithstanding the seemingly restrictive wording of Article 15.)

In the world’s largest democracy which frequently prizes itself for its ‘diversity’, how has intersectional discrimination fallen by the wayside of Article 15 of the Indian Constitution? This two-part post is interested in examining this issue. The motivation is to explore how intersectionality needs to manoeuvre the foundational roadblock of a “quantitative” view of discrimination as based only on a single ground. It revolves around the interpretation of clause (1) of Article 15 which embodies the general constitutional guarantee of non-discrimination, especially the phrase ‘on grounds only of religion, race, caste, sex, place of birth or any of them’, and whether it admits intersectionality. The aim is to understand: in this post, how discrimination law practice in relation to Article 15 has foreclosed the routes to recognising intersectional discrimination; and in the next post, how Article 15(1) can be reconstructed to include discrimination on multiple grounds by linking grounds to the basis or effects of discrimination.

Intersectionality Theory

Intersectionality theory seeks to understand identity as a combination of multiple and intersecting grounds of race, sex, gender, disability, class, age, caste, religion, sexual orientation, region etc. Intersectionality emerged as the practical and legal application of the theoretical characterisation of Black women’s identities shaped by their race, class and gender. It was first translated in the legal realm by Kimberlé W Crenshaw in her 1989 piece, which highlighted that any real commitment towards eliminating racism and patriarchy cannot ignore those located at the intersections of the two movements – i.e. Black women. The appreciation of both shared and unique compoundedness of Black women’s experiences of race, sex and class, characterised the method of intersectionality in discrimination law. Black women’s experiences were seen as defined by the intersection of blackness and femaleness – this meant that they could sometimes share experiences with white women or with Black men, and at other times reflected experiences of being both Black and female, in a unique synergy. This is how intersectionality theory explains the nature of discrimination based on more than one personal characteristic of individuals; thus the term ‘intersectional discrimination’ may be used to accurately signify discrimination which is suffered on more than one personal characteristic.

The understanding of discrimination suffered on more than one ground requires a distinctive explanation which represents the qualitative dimensions of tracing unique and shared experiences of disadvantage along the lines of people’s personal characteristics. It is different from “multiple discrimination”, which is usually understood as a combination of discrimination based on two grounds—such that the net discrimination suffered, say, as a Dalit women is a sum of discrimination suffered as a woman and as a Dalit. It is also different from the idea of ‘overlapping’ forms of discrimination such that discrimination suffered on two grounds can be described as having been suffered on both of them separately or individually. It thus asks us to view discrimination based on multiple grounds in a particular way which is not pure arithmetic. For example, to explain discrimination against a disabled Muslim woman, we will need to explain how: (i) the identity of the claimant shared experiences of discrimination with Muslims, women, disabled persons and hence coincided at points with experiences of disability, sex/gender and religion-based discrimination; but also (ii) the uniqueness of the discrimination which is faced by a disabled Muslim woman which is different from discrimination based on disability, sex/gender and religion, or a combination (addition) of any of these. This is the sense in which intersectionality seeks to capture the normative foundation of discrimination suffered on multiple grounds.

Indian Jurisprudence

In the United States, the locus classicus on intersectionality is the case of DeGraffenreid. In that case, the plaintiffs sought a determination that the ‘last hired-first fired’ lay off policies of the defendants discriminated against them as Black women. The United States District Court of Missouri summarily dismissed the possibility that claims could be based upon a combination of grounds (race and sex) and hence plaintiffs were denied the right to claim as Black women who suffered both racial and sex-based discrimination. It interpreted the compoundedness of the claim as a demand for recognising a ‘new special sub-category’ or ‘special class’ for the grant of a ‘new “super-remedy”’ beyond the contours of Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, colour, religion, sex or national origin. It concluded: ‘this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.’

In the absence of an intersectionality test case like DeGraffenreid in the United States, there has been no direct instance of testing the waters of Article 15 for intersectional discrimination. Nevertheless, there have been cases which indicate the increasing impossibility of bringing a claim based on more than one ground. These cases can be delineated into three discernible threads pertaining to—(i) the misinterpretation of ‘only’ in the text of Article 15(1); (ii) the misapplication of Article 15(3) which allows protective discrimination in favour of women; and (iii) the overreach of reservation jurisprudence under Article 15(4)-(5) to limit the scope of clause (1). Pursued consistently by the Supreme Court, these approaches can (mis)lead us to the point of excluding intersectional discrimination by justifying it as either non-discriminatory or ameliorative.

The Calcutta High Court case of Anjali Roy v State of West Bengal laid down the foundation for understanding sex discrimination as solely based on the ground of sex and no other ground. The case involved an order which restricted admission to women into college A but not college B. The High Court held that the restriction did not constitute discrimination within the meaning of Article 15(1). The holding was premised on the interpretation of Article 15(1) as:

“….the discrimination which is forbidden [in Article 15(1)] is only such discrimination as is based solely on the ground that a person belongs to a particular race or caste or professes a particular religion or was born at a particular place or is of a particular sex and on no other ground. A discrimination based on one or more of these grounds and also on other grounds is not hit by the Article.

This reasoning seems to be cemented in the decision of Air India v Nergesh Meerza. Air Hostesses working with Air India challenged the constitutional validity of Air India Employees Service Regulations. The challenge related to three particular conditions under the Service Regulations which provided that an Air Hostess was to retire from service upon the following contingencies: (i) on attaining the age of 35 years (extendable at the discretion of Managing Director to 45 years); (ii) on marriage if it took place within 4 years of the service; or (iii) upon first pregnancy. The Court found that:

“[W]hat Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.”

In the final analysis, the Court only upheld the condition of termination if married within four years of service on grounds of family planning, improving health and maturity of the employee with growing age and hence ensuring the success of marriage, as well as the economic costs of training the crew.

Since this case was argued as a claim of sex discrimination which also devolved upon marital status, age and pregnancy—all of which qualified as mere ‘considerations’ for the Court but could well be incidents of sex or even analogous grounds, the reasoning that discrimination can only be caught by clause (1) when only and only made on the ground of sex is as myopic as is incorrect. It strips the prohibition of sex discrimination of any necessary content and stands as a rejection of discrimination—whether single ground or intersectional—by failing to: (i) account for the meaning and wherewithal of the right to non-discrimination; and (ii) transcend the acontextual and technical understanding of ‘on grounds only of’ which ignores the ending phrase ‘or any of them’ in clause (1).

Finally, in relation to the relationship of clause (1) with the reservation jurisprudence: the Supreme Court in Champakam Dorairajan formulated the test for identifying classes for reservation as one which cannot solely be based on enumerated grounds because it would run afoul of clause (1). However, considering the text of clauses (4) and (5) which begin with ‘Nothing in this article’, it is clear that the reservations meant to justify and validate something which may even be discriminatory under clause (1). The judicial test for determining the classes for reservations thus renders the constitutional drafting confused and redundant. This ordinary meaning interpretation of the opening words of clauses (4) and (5) (‘Nothing in this article’) has been largely overlooked and reservations are only permitted when not based on a single ground.

This interpretative lapse is carried through when intersectional discrimination is not just made acceptable for the purposes of clauses (4) and (5) but also clause (1). But there is no such necessary logical corollary which flows from the possibility that special provisions on intersectional grounds may be made under clauses (4) and (5). The allowance for intersectional discrimination to be justified when ameliorative because it is for the advancement of certain classes should not also lead to a presumptive justification of hostile intersectional discrimination under Article (1). Whether considered a facet or exception to Article 15(1), the special provisions permissible under clauses (4) and (5) have a narrower compass than the guarantee in clause (1). They are specific in as much as they relate only to the state’s prerogative for taking certain special measures for identified classes. It is settled that these clauses do not confer rights as such and are discretionary tools for the government to be pursued towards the broader goal of promoting substantive equality. To interpret this discretionary power under clauses (4) and (5) to confine the scope of a right under clause (1) cannot be the appeal of Indian discrimination law jurisprudence.

The next post will consider how Clause (1) should be re-envisioned to admit the possibility of bringing discrimination claims based on more than one ground.

(Shreya is completing her D.Phil degree at the Law Faculty, University of Oxford.)

Reading Article 15: Non-Discrimination and the Question of Inter-sectionality

Article 15(1) of the Constitution states:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Now consider the following hypothetical: a State instrumentality refuses to hire only Dalit women. It hires both non-Dalit women and Dalit men on parity with everyone else. So, it does not discriminate on the basis of caste (it hires Dalits) or sex (it hires women), but upon a combination of both of them. Is there an Article 15 violation?

This issue is commonly known as intersectionality. Intersectionality studies the way in which commonly constructed categories like race, sex, religion (precisely the categories listed in Article 15) do not reflect isolated, hermetically-sealed and individuated systems of dominance and suppression, but invariably tend to overlap and interact. Accounts of power-hierarchies therefore, that focus on a single axis (e.g., racism, or casteism) are inevitably incomplete.

The manner in which this incompleteness affects legal analysis comes to the fore in the American case of De Graffenreid v. General Motorsa decision of the Eighth Circuit Court of Appeals. Prior to the passage of the Civil Rights Act, 1964, General Motors did not hire black women. After the 1964 Act, it was compelled to. In 1970, during a recession, it initiated a series of seniority-based layoffs, and consequently, the black women who had been hired in 1964 lost their jobs. Their discrimination claim was rejected by the District Court a decision that was, in substance, upheld by the Appeals Court (we need not go into certain technical procedural issues here), the crucial observation being:

“… this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.”

The problem with this argument, as Kimberle Crenshaw points out in this excellent article, is that it implies that “the boundaries of sex and race discrimination doctrine are defined respectively by white women’s and Black men’s experiences. Under this view, Black women are protected only to the extent that their experiences coincide with those of either of the two groups.'”

That brings us to the question of how to read Article 15(1). The article prohibits discrimination on grounds only of… [x, y and z]… or any of them. The key interpretive issue here is the role of the phrase “any of them” as adding to – or qualifying – “only”. According to judicial decisions, “any of them” ensures that the State cannot get around its obligations by discriminating on the basis of a prohibited category combined with a non-prohibited category. For example, in my organisation, I have a promotion rule based on seniority, but I exclude women from it. I am thus discriminating on the basis of both sex and seniority. The former is a prohibited category. The latter is not. So, I am not discriminating only on the basis of sex, but I am discriminating on the basis of sex nonetheless, and fall within the ambit of Article 15(1).

This is a straightforward case; the problem arises precisely in intersectionality claims, however, because in the Dalit-woman case we discussed above, I am neither discriminating on the basis of caste or on the basis of sex, but an amalgamation of the two – and because of the amalgamation; in other words, my specifically-tailored discrimination towards Dalit women ensures that – unlike the case of sex + seniority – I escape the textual ambit of the statute by escaping the prohibited categories altogether.

Two posts ago, we discussed how, in the context of Naz Foundation, reading sexual orientation into “sex” was the only way to honour the Constitution’s core commitment to the respect and the autonomy principles: the first, in particular, mandated that no discrimination was permitted on the basis of those defining labels that a person is born with, and that constitute her public (and private) identity. The textual reading posited above violates this commitment, and for that reason it must be rejected, notwithstanding precedent to the contrary.

What is the alternative? It is to read the term “or any of them” as including a prohibition on intersectional discrimination. This might appear linguistically strained, at first sight, but surely it is – to use a term coined by the UK Supreme Court – an “intellectually defensible” reading. In other words, “or any of them” is used after “only” to mitigate two situations: discrimination on the basis of a prohibited category combined with a non-prohibited category, which therefore escapes the “only” prohibition; and simultaneous discrimination on the basis of two prohibited categories that also therefore escapes the “only” prohibition, albeit for very different reasons.

This argument, of course, is based entirely upon the text and structure of the Constitution. I have not gone into Article 15 case law, primarily because – for the reasons adduced above – I think that the text and structure provide a satisfactory answer to what might appear – at first blush – the problem of intertextuality arising out of a plain reading of the text.

This might appear to be a mere semantic quibble; no doubt, if a case of this sort was to actually come before the Court, it would hold that an Article 15 discrimination case was made out, textually or not. Nonetheless, I think it reveals an interesting facet about our intuitions about discrimination, that are reflected in our constitutional text – we tend to think of discrimination as taking place through individual a priori categories (race, class, sex). Intersectionality tells us that this reflexive belief might exclude a set of extremely important experiences of discrimination; and that therefore, this deeper and richer sense of what discrimination is ought to be reflected not only in our changed attitudes, but in our laws as well.