Same-sex marriage verdict: Need for new law to end bias, says Supreme Court

“Presently, there are several laws that have an anti-discrimination aspect to them. However, they are fragmented and may fail to capture the multitudinous forms of discrimination,” he said.

Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth and is a fundamental right of every citizen. In previous judgments, the Supreme Court has given an expansive interpretation to the term “sex” in Article 15, to include sexual identity.

The J S Verma Committee formed to review laws on sexual crimes too had recommended that the interpretation include sexual orientation, to address discrimination faced by many.

On Tuesday, Justice Kaul said that while Article 15 prohibits discrimination by state and private persons, there are significant challenges for marginalised communities to access courts through writ petitions to safeguard their rights. He said an anti-discrimination statute can be a fitting solution to this. Such a law should recognise discrimination in an ‘intersectional’ manner, he said.

“That is to say, in assessing any instance of discrimination, the court cannot confine itself to a singular form of discrimination. Instead, discrimination must be looked at as a confluence of factors — as identities and individual instances of oppression that ‘intersect’ and create a distinct form of disadvantage,” the court said.

It said that laws can only be effective if they address the types of inequalities that have developed in society. It suggested duties under the new law can be proportionately distributed between different actors depending on factors like who has control over access to basic resources, impact on their negative liberty. It also suggested that such a statute must have methods to redress discrimination and bridge the “advantage gap” through policies that distribute benefits to disadvantaged groups. It also suggested that such a statute must have methods to redress existing discrimination and bridge the “advantage gap” through policies that distribute benefits to disadvantaged groups.