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The fallacy of equality

By Oishik Sircar

The Constitution guarantees us the right to equality and non-discrimination. But is it guaranteeing only a 'formal equality' while in effect maintaining the status quo of 'substantive inequality' in the lives of disadvantageously-situated citizens?

The chequered history of Indian constitutionalism has given us reason enough to repose our faith in the fundamental rights enshrined in Articles 14 (equality) and 15 (non-discrimination). Constitutional guarantees have been effectively used to expand their reach to protect many forms of human rights, and also to strike down laws that go against the tenets of equality and non-discrimination. Yet when it comes to dealing with historical and structural disadvantage, even these pillars of the rule of law seem to falter.

There are three reasons for this: first, the premise of equality and non-discrimination in the judicial interpretation of constitutional guarantees is based on a 'formal equality' approach, as opposed to a 'substantive equality' one; second, the Constitution has been ineffective in responding to intersectional forms of discrimination, where the incidence of disadvantage is most acute; and third, these 'basic' constitutional guarantees lay claim to a 'universal truth' about the operation of rule of law -- where "the law is understood to be insulated from all kinds of influences, and to be above all 'worldly' considerations -- and thus ignores the fact that such a claim resides in the ideal rather than the actual practice of law" (1).

Although the law often fails to deliver its idealised promise of protecting the rights of citizens, it continues to declare its authority, which is claimed to be derived, in part, "through scientific legal method and rigour, and its projection as a unified discipline with an internally coherent logic that is transcendent and divorced from the world" (2). It is because of this illusionary reason that the law, in spite of its in-built biases, continues to be used by those very people to claim rights, who are at the receiving end of the violence of law. This does not mean that these standards should be ignored -- merely that a more strategic politics is required for engaging with the law.

In this essay I will attempt to illustrate what I call the 'fallacy of equality', where in spite of the constitutional guarantee of equal protection of the law, judicial interpretation reinforces 'formal equality', in effect maintaining the status quo of 'substantive inequality' in the lives of disadvantageously-situated citizens. Any claim for substantive equality demands that the claimant 'becomes same', like those whose behaviour and identity conform to the notions of the 'good' or 'ideal' citizen. Thus, in the process of guaranteeing equality, the system seeks to negate plurality of experiences.

Elusive equality

The equality clause of the Constitution, Article 14, reads:

    "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

What constitutes the right to equality under the Indian Constitution is equal treatment only in respect of the law -- the meaning of law extends also to administrative rule and procedures that flow from legislations formulated by agents of the State. Unequal treatment meted out because of the existence of any other form of structural disadvantage is outside the scope of this provision; so are acts of unequal treatment carried out by non-State (private) actors. Any law found to be ultra vires Article 14 can be declared void ab initio, as per Article 13 (3).

The Preamble to the Constitution speaks of equality of status and of opportunity and this article guarantees the realisation of that principle. A plain reading of this article tells us that the Constitution imposes restrictions on State action to ensure that it refrains from doing anything that can deny the 'citizen' two primary guarantees -- that of right to equality before the law, and equal protection of the law.

The first expression 'equality before the law' is a declaration of equality of all persons within the territory of India, implying thereby the absence of any 'special privilege' in favour of any individual. Every person, whatever his/her position, is subject to the jurisdiction of the ordinary courts. The second expression, 'the equal protection of laws', which is a corollary to the first, secures equal protection in the enjoyment of their rights and privileges, without favouritism or discrimination, within the territorial jurisdiction of India (4).

The juridical application of Article 14 operates on the basis of 'intelligible differentia'. This refers to two principles in law regarding classification of groups for different treatment. First, that differently-placed citizens can be treated differently under the same law as long as the classification is based on an intelligible differentia which distinguishes persons that are grouped together from others excluded from the group; and two, the differential treatment must have a reasonable and rational connection with the objective that the law in question is supposed to reach. In other words, the equality guarantee actually does not require that the law treat all individuals equally. It has been interpreted by courts as a prohibition against unreasonable classification. As was held in the case of Chiranjit Lal Chowdhury v Union of India (1951), the guiding principle of the article is that all persons 'similarly circumstanced' shall be treated alike, both in privileges conferred and liabilities imposed. The rule is that 'like should be treated alike' and that 'un-like should be treated differently'.

This understanding of equality clearly follows the formal equality approach where equality is understood as sameness. In effect, only if you can become same will you be treated equally. To decide whether one qualifies to be 'same', the court has to first classify the groups in question claiming equality so that they can be compared to find out whether they are same or different. If it is established that the classified groups are differently placed, then such difference will be the justification for differential treatment. Thus, judicial interpretation suggests that when classified groups don't qualify to be the same, or similarly situated, they don't qualify to be equal either, even if their differences are an outcome of historic or systemic discrimination. As Ratna Kapur and Brenda Cossman note: "The first step in determining whether Article 14 has been violated is a consideration of whether the persons between whom discrimination is alleged fall within the same class. If the persons are not deemed to be similarly circumstanced, then no further consideration is required" (5).

For instance, let us consider the case of Section 66 of the Factories Act, 1948 where women are prohibited from working in factories during the night, on grounds that they are vulnerable to violations during nocturnal hours of work. If one were to challenge this section as violative of Article 14, because it treats men and women unequally, such a challenge would fail because, according to the doctrine of 'intelligible differentia', the classification between male factory workers and female factory workers is reasonable; and thus, differential treatment between them is justified in law. The same situation arises when we consider Section 377 of the Indian Penal Code that criminalises 'unnatural sex': challenge to this law on the ground that it violates the guarantee of equality would fall flat, since differentiation between 'homosexuals' and 'heterosexuals' would be valid, thus justifying the differential treatment; in other words, a perpetuation of substantive inequality.

Similarly, in the 2000 case of Almitra Patel v Union of India, the Supreme Court did not consider the guarantee of the right to housing and livelihood applying without prejudice to slum-dwellers in Delhi. Instead, it labelled them "encroachers", legitimising their forced eviction. Again, the judgment was informed by an understanding of formal equality where classifying slum-dwellers as different from non-slum-dwellers justified their eviction. The means for these 'differently placed' groups then, to make use of this article to claim their right to equality, would be to 'become same' as the classified group in comparison to which they are being treated unequally. What such interpretations of formal equality also imply is that equality is predicated on certain normative standards: you can only become 'equal to' that standard.

Exclusive discrimination

Article 15 extends the equality guarantee of Article 14 by providing for the right against discrimination on the basis of religion, race, caste, sex and place of birth. Forms of discrimination that fall within the purview of Article 15 are based on disability, liability, restriction or condition imposed on the basis of the above prohibited grounds.

Article 15 reads as follows:

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

    (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to --

    (a) access to shops, public restaurants, hotels and places of public entertainment; or

    (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

    (3) Nothing in this article shall prevent the State from making any special provision for women and children [...]

    (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes (6).

    (5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. (7)" (emphasis added)

Inferences towards the possibilities of exclusionist interpretations of Article 15 appear even from a plain reading of the provision. In Clause 1, beyond the five grounds mentioned, no other grounds qualify as discrimination. For instance, sexuality and disability does not find mention as grounds for discrimination. Thus all the manifestations of discrimination as enshrined in Clause 2 (a) will also not apply in case of sexually marginalised or disabled persons. The imposition of any "disability, liability, restriction or condition" on these groups does not qualify as discrimination at all within the scheme of the Constitution. Their access to public places, if circumscribed by law, or executive/non-State action, or structural/spatial factors will not automatically draw the protection of the non-discrimination guarantee of the Constitution.

The contested perceptions of equality and non-discrimination within the context of the Constitution get further complicated when we try to understand if the Constitutional mandate in Article 15 captures the intersectional nature of discrimination and disadvantage. It is necessary to note that the grounds stated in Article 15 (1) are preceded by the word 'only'. In the interpretation of this word by the Supreme Court in Anjali Roy v State of West Bengal (1952), it was noted that if discrimination is found to exist on grounds other than those enumerated, then there is no violation of Article 15 (1). Even discrimination on the basis of sex, coupled with discrimination on other non-enumerated grounds, would not constitute a violation (8). Thus, the courts are not even permitted to progressively interpret the grounds under Article 15 (1) to include sexuality or disability -- neither can judicial interpretation capture the reality of disadvantage that many might face from being at the receiving end of multiple and intersectional forms of discrimination.

However, a reading of Clause (3) (9) seems to suggest a move from the otherwise formal approach to equality to that of substantive equality. The substantive equality approach moves beyond looking at equality merely as a guarantee lettered in law, to one that looks at the actual impact of the law, to do away with substantive inequality. The primary aim of a substantive equality approach is not to harp on the guarantee of equality as being predicated on an understanding of sameness and differences, but one that "takes into account inequalities of social, economic and educational background of the people and seeks the elimination of existing inequalities by positive measures" (10). In other words, the substantive equality approach attempts to correct the historical and structural reasons that result in disadvantaging a particular group.

On the face of it, Article 15 (3) mandates the State to make special laws for 'women' -- in effect, discriminating in their favour. A stipulation of this kind suggests that the provision does take into account the historical and systemic processes through which discrimination against women has been effected, and thus makes the State accountable for doing away with it through 'protective' and proactive laws. However, in the absence of a substantive equality approach in the judicial interpretation of Article 15 (3), there is scant consideration of whether the laws actually 'protect' women, or they create 'protectionist' measures to safeguard the honour and chastity of 'good' women.

Such an understanding of 'progressive discrimination' on the grounds of sex can actually serve as a justification for the constitutional validity of the Immoral Traffic Prevention Act -- purported to be a legislation that is meant to rescue and rehabilitate passive and agency-less women from the scourges of prostitution -- completely undermining the fact that it is the existence of the law that perpetuates the 'violence of stigma' against women in prostitution, and gives the police a free hand in apprehending and incarcerating them as criminals. All this in the name of 'protecting' women. Similarly, if one were to challenge the Maharashtra government ordinance that banned dance bars on grounds that it violated Article 14 and 15 (1), such a challenge could have been struck down by the courts on the basis that 'bar dancers' are a reasonable classification in comparison to 'other more respectable women', and that in connection with Article 15 (3), the ordinance would actually protect the 'helpless' bar girls.

In a 2001 petition filed in the Delhi High Court demanding that Section 377 be read down to de-criminalise adult, consensual and private sex, the State used the logic of Article 15 (3) to argue that since Section 377 protects women and children from sexual assault, it actually serves the responsibility put on the State under Article 15 (3). While the argument follows the letter of the law perfectly well, never did the State even mention that what is required to effectively curb child sexual abuse is a separate law on the issue, given the fact that Section 377 is highly inadequate in doing so.

Again, a plain reading of Clauses 4 and 5 in Article 15 points towards the constitutional culture of progressive discrimination of caste-based disadvantaged groups. Clearly, the State's mandate for extending 'reservations' derives strength from these clauses. But what might "special provisions" mean in a context where the Constitution is increasingly being interpreted through a formal equality approach? A possible peril can be the justification of segregation (within institutes, for instance) between non-SC/ST/OBC students and SC/ST/OBCs, ostensibly on the ground that it will prevent harassment and discrimination. A move towards exclusive institutes for SC/ST/OBCs can be yet another consequence of furthering the mandate in Clauses 4 and 5. Both segregation and exclusivity might temporarily make the State's initiative look progressive, but in actuality it wouldn't have changed any of the structural and systemic inequalities that cause caste-based discrimination. Interestingly, anti-quota advocates use the same letter of the Constitution to point out that it is self-contradictory: while on the one hand it guarantees non-discrimination, at the same time it makes an exception for special groups. This argument is also predicated on a formal equality approach which believes that as long as the Constitution guarantees non-discrimination all become equal automatically. This is why quotas alone as representative of "progressive discrimination" only perpetuate a politics of patronage, in effect maintaining a state of substantive inequality for disadvantaged groups like dalits.

If we consider the recent Supreme Court judgment in Ashoka Kumar Thakur v Union of India (2008) it becomes apparent that the inclusion of Clause 5 to Article 15 through the 93rd Amendment Act, 2005 and the subsequent debates around the constitutional validity of the Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007) follow the formal equality approach. While it is celebratory that the judgment upheld the constitutional validity of both Article 15 (5) and Act 5 of 2007, it did so by 'reasonably classifying' certain specific institutions, minority institutions and private un-aided institutions, and exempted them from the ambit of the implementation of quotas. As Kalpana Kannabiran observes: "(This) goes against the spirit of (substantive) equality and considerably shrinks the space for entitlements of persons from vulnerable groups. It is not so much a question of the measure of equality between institutions inter se that is critical in access to education, as of the measure of equality between citizens differently placed because it is citizens who bear the brunt of discrimination and exclusion. After all, reservation is an inseparable part of the principle of equality, and where equality is concerned no institution can be outside its ambit (11)."

What emerge from the above discussion are glimpses into the fractured armour of constitutional justice in India. Does that suggest we abandon the Constitution? Of course not, because the Constitution is more than a mere document listing rights and guarantees of the citizens of India; it is a charter that defines the ways in which India as a country should work towards a shared future that is not detrimental to any of its citizens. Yet, there's a peril in romanticising the Constitution in an age where even the ideals of equality and freedom have faced a neo-liberal appropriation: economically and culturally. The activist role played by the Supreme Court of India in the 1990s that redefined the right to life (Article 21) by expanding it to include a whole range of situations where rights are absent, to the present period where the judiciary has been complicit with the market in shrinking the spaces for allowing access to justice and meting out distributive justice, requires an acknowledgement that the law's letter derives meaning from the socio-political contexts in which it is used and applied. While we cannot afford to abandon the constitutional guarantees of equality and non-discrimination, it is important that we ask critical questions about whether the pursuit of equality has itself become a discriminatory enterprise.

Endnotes

1 Ratna Kapur, 'Travel Plans: Border Crossings and the Rights of Transnational Migrants'. 18 Harvard Human Rights Journal at 109
2 Ibid
3 Article 13 lays down that all laws contrary to the fundamental rights guaranteed under the Constitution shall be deemed to be void
4 V N Shukla, Constitution of India (9th Edition). Lucknow: Eastern Book Company. 2001 at 37
5 Ratna Kapur and Brenda Cossman, 'On Women, Equality and the Constitution: Through the Looking Glass of Feminism'. 1 National Law School Journal. 1993. at 2-3 (Kapur and Cossman)
6 Inserted by the 1st Amendment, 1951
7 Inserted by the 93rd Amendment, 2006
8 Kapur and Cossman, supra note 5 at 11-12
9 Also, Clauses 4 and 5
10 Kapur and Cossman, supra note 5 at 3
11 Kalpana Kannabiran, 'Road Map for Reservation in Higher Education'. The Hindu, April 18, 2008

InfoChange News & Features, October 2008