Tag Archives: intersectionality

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.)

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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.)

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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.

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