Written by Stuti Shah and Shashank Atreya
In India, unmarried couples being denied housing, homeless persons being denied entry to shopping malls, and homosexual persons being denied employment on the basis of their sexual orientation, are left to fend for themselves in the absence of material legal remedies. Though Article 15 of the Constitution gives citizens the right to not be discriminated because of their religion, race, caste, sex, and place of birth, it often falls short in addressing the myriad shades of discrimination that have emerged since its adoption.
Congress MP Shashi Tharoor has now, with the assistance of legal expert Tarunab Khaitan and a few others, attempted to put together an Anti-Discrimination Bill for Kerala, to address the lacuna in the current legal regime on anti-discrimination.
The Constitutional Assembly debates show that the drafters of the Constitution attempted to provide a transformative framework through Article 15, that furthered social justice and individual liberty. However, the text of Article 15 has more often than not limited this objective.
Firstly, the text of Article 15(1) provides protection to persons against discrimination “only” on grounds of race, religion, caste, sex, and place of birth. The sanctuary of Article 15 is therefore exclusively extended to a miniscule set of immutable characteristics of individuals obtained at the time of their birth. This strikes at the very foundation of an individual’s personal autonomy, since fundamental choices acquired subsequent to birth do not receive similar protection under Article 15. The selective approach to restrict the ambit of Article 15 to discrimination based on a few grounds of immutable status attained at birth, is a failure to acknowledge the core purposes of the Constitution — pluralism and individual liberty.
Furthermore, Article 15 disallows discrimination in the access and use of specific public places, such as shops, restaurants, and roads. Though B R Ambedkar clarified to the Constitutional Assembly that this brief list of public places must be given the broadest meaning possible, there was no such discussion on the restrictive nature of the grounds of discrimination mentioned in Article 15.
Courts have been selective in their grant of judicial remedy, and more often than not, stuck to the letter of the law. The Calcutta High Court in Sri Mahadeb Jiew v. Dr B B Sen held that the word “only” in Article 15(1) of the Constitution is of great significance, and is enough to indicate that remedy would be provided only with respect to grounds mentioned in Article 15. This interpretation was upheld by the Supreme Court in Air India v. Nergesh Meerza, where some provisions of the Air India Employees’ Service Regulations were challenged as prejudicial to women. For instance, while the retirement age for male in-flight crew was 58, air hostesses were required to retire at 35, or on marriage, or on their first pregnancy, whichever occurred earlier. The Supreme Court upheld the Air India Employees’ Service Regulations and opined that Article 15 prohibits discrimination “only and only on the ground of sex”, and does not prohibit the State from discriminating on the ground of sex coupled with other considerations (such as age), thereby explicitly disregarding intersectionality. Only in 2018 did the Supreme Court in Navtej Johar v. Union of India overturn its decision in Nergesh Merza, by expanding the scope of Article 15 to include “sexual orientation”. .
Despite the global jurisprudential position requiring courts to interpret the law for the benefit of politically disempowered minority communities, courts in India have not always paid attention to the concerns of such disadvantaged groups while adjudicating social justice causes. Over time we have come to realise that the grounds set out in Article 15 comprise a narrow list, which barely scrapes the surface in order to guarantee rights to India’s heterogeneous population, and it is difficult and impractical to rely on the magnanimity of the judiciary in expansively reading this limited set of grounds each time.
The legislature is the best-suited organ to provide an expansionist approach to Article 15 and give full effect to the intent of the Constitutional Assembly, while the role of the court should be limited to its constitutionally assigned duty — that of interpretation. It is in this context that the efforts of Tharoor and his team in introducing a legislation on anti-discrimination are welcome.
The Anti-Discrimination Bill not only expands the coverage of immutable characteristics of individuals acquired at birth to include grounds such as disability, HIV status, skin tone, but it also goes one step further and recognises fundamental choices of individuals such as dietary preference, marital status, and place of residence, as grounds on which citizens cannot be discriminated against. The draft law recognises that any discriminatory action, including harassment, segregation, or boycotting, on the basis of any, or a combination of any, of the above mentioned categories, would be an offence. The Bill also prohibits employers, landlords, traders, service providers, private persons performing public functions, and public authorities, from discriminating on such grounds.
Therefore, rather than addressing the situations in which discrimination is prohibited, the Anti-Discrimination Bill addresses the players involved in discrimination, the grounds on which discrimination is prohibited, and the shades of discrimination. In doing so, it substantially expands, and re-imagines Article 15.
A version of the Anti-Discrimination Bill, which Tharoor has recently forwarded to Kerala’s Law Minister and the Leader of Opposition, has been in the offing twice — by the UPA Cabinet in 2014, and by Tharoor himself in 2016. However, neither of these attempts came to fruition. Since the party leading Kerala’s ruling alliance, CP(M), as well as the opposition, UDF, have included enacting an anti-discrimination law in their respective manifestos, Kerala is the best suited state for the Anti-Discrimination Bill to first take shape. This effort will open doors for other states to follow suit. If the Kerala Government agrees to Tharoor’s suggestion of a pre-legislative consultation process for this Bill, the Bill will be democratic, inclusionary, and robust.
As an immediate step however, we must understand Article 15 expansively. Similar to how the judiciary has interpreted the Right to Life under Article 21 of the Constitution, to include the right to water, privacy and housing, the grounds of discrimination under Article 15 must be boundless, adaptive, and all-encompassing.
Having said that, the Anti-Discrimination Bill and the expansionary reading of Article 15 are not sufficient in and of themselves to prevent discrimination altogether. Though caste and religion are grounds on which discrimination is prohibited under Article 15, several instances are recorded on a daily basis wherein Muslims, and members of the Dalit community continue to be subject to discrimination. Therefore, for the Anti-Discrimination Bill to have maximum impact on ground, it is of the utmost importance and urgency for the Centre and state governments, along with civil society to sensitise and urge Indians to do away with deeply entrenched social prejudices and cease the practice of discrimination in their everyday lives.
The writers are Graduate Students of Columbia University