(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.)

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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.

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

Original author: gautambhatia1988