By Vatsal Patel

India is perhaps the only country where the constitutional guarantee of non-discrimination is not backed by a comprehensive legislation. While Article 15(1) of the Indian Constitution posits a mandatory duty upon the State to not “discriminate against any citizens on grounds only of religion, race, caste, sex, place of birth or any of them” (Vertical Anti-Discrimination); Article 15(2) places a similar obligation upon Indian citizens, to not discriminate against fellow citizens, in terms of granting them access to public-spaces (Horizontal Anti-Discrimination). These articles are in addition to a discrimination-free commitment in public-employment under Article 16(2) and a broad guarantee of a right to equality under Article 14.

Although, Article 15 was originally limited in the number of personal characteristics (i.e. five), the Delhi High Court in Naz Foundation v. Govt. (NCT of Delhi) interpreted it in a liberal manner to include other grounds which have at their core “personal autonomy” of an individual. In Navtej Singh Johar v. Union of India (“Navtej”), these were elucidated by the Indian Supreme Court to mean personal characteristics that were  either immutable in nature (immutable status) or could be changed only at great personal costs (fundamental choice) as voiced by Judge Malhotra. Thus, the jurisprudence of identifying the groups upon whom discrimination is committed, has sufficiently developed in India, and is on par with countries such as U.S.A., Canada, England and South Africa. However, a two-fold problem still persists in a constitutional claim of discrimination by the victim. This problem lies in the realm of “remedies” granted by constitutional courts i.e. High Courts of all the States and the Supreme Court, under their “writ jurisdiction” (upon which a claim of discrimination will be made) which is conferred by Article 226 and 32.

Institutional Hindrance

The first problem arises because of the polyvocal nature of the constitutional courts in India. In the absence of legislative uniformity, the subjective wisdom of different judges of constitutional courts will prevail. This will in fact impede the efficient settlement of disputes which involve a claim of discrimination, and the problem will be heightened in a claim of Horizontal Discrimination. This is because in a case of Horizontal Discrimination, the individual rights of the person who commits discrimination will also have to be curtailed in order to address the needs of a victim. For e.g. through a remedy of reasonable accommodation, a citizen’s fundamental right to business under Article 19(1)(g) may be curtailed. Although, under writ-jurisdiction, expansive remedies, including those of compensation, can be claimed by the victim, in the absence of a uniform comparator, they could significantly differ even in the same case, based upon different approaches of the individual judges of constitutional courts.

The second problem is that the constitutional courts, in their writ jurisdiction, are ill-equipped to thoroughly conduct a facts-based inquiry, and take a “hands-off” approach while considering a disputed question of fact. Moreover, unlike apex constitutional courts in other jurisdictions, the institution of Supreme Court does not venture to conduct a simple facts-based inquiry even in complex cases and prefers to show deference to the outright claims of the government. This impedes the adjudication of a claim of discrimination, with a significantly greater impact in cases of Horizontal Discrimination which requires the balancing of individual rights.

In stark contrast to the Indian model, countries such as Canada (Canadian Human Right, 1977), England (Equality Act, 2010) and South Africa (The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000), all have comprehensive equality codes, in addition to basic constitutional protections, and guarantee discrimination-free opportunities of education and employment to individuals even within the private-sector.

An example: anti-discrimination in education & employment

The question of education in private-sector, to a reasonable extent, has been answered by the Supreme Court in Indian Medical Association v. Union of India, wherein it interpreted the term “shops” under Article 15(2), in an expansive manner, to include within its meaning even private educational institutions. What is intriguing that this reasoning of the court was in consonance with constitutional framers’ understanding of the generic term of “shops”, which at the time of founding was construed as “a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service”.

In terms of employment in private-sector, the Parliament has provided equal pay for equal work only among males and females through the Equal Remuneration Act, 1976. However, it poses two problems – firstly, its implementation is poor; and secondly, it is limited to the personal characteristic of “sex”. For all the other personal characteristics there is a lack of initiative on part of the Parliament to remedy the status quo. Consequently, in stark contrast to education, employment in private-sector seems to be of less significance in the Indian quest for equality.

Bostock is a wake-up call for the Indian Parliament to draft an exhaustive equality code, which in effect brings the goal of equality to a realisation. The requirement of such a code is to alleviate current or historical disadvantage faced by social groups and is supported by comprehensive egalitarian, freedom and expressive accounts of the law on discrimination.

Past Attempts

It is not that attempts in the past have not been made in this particular direction. The credit for the first attempt goes to the Sachar Committee which recommended the establishment of a an Equal Opportunity Commission for solving claims of Vertical and Horizontal Discrimination. This attempt was carried forward by an expert group set-up by Ministry of Minority Affairs, Government of India, under the aegis of Professor Madhava Menon. However, this attempt failed to address the problem because of an absence of an enforcement mechanism as envisaged under the Sachar Committee.

In 2017, Shashi Tharoor (Member of Parliament), introduced a Private Member’s Bill which was developed in consultation with Professor Tarunabh Khaitan, and included within its ambit anti-discrimination norms for education and employment in the private-sector. However, this idea could not materialise because of the lapsing of bill upon dissolution of the Parliament. Another attempt to address the issue of employment, at least among the transgender community, can be seen in the Transgender Persons (Protection of Rights) Bill, 2019, wherein Section 3 guarantees a discrimination-free employment opportunity to a transgender person in the private-sector. However, this commitment to ensure equality is again not backed by an enforcement mechanism which could ensure its implementation.

Conclusion

The recent jurisprudence of the Supreme Court surrounding personal autonomy, dignity and privacy has been established on the basis of a “transformative character” of the Indian Constitution. This means that the “individual” rather than the “group” is considered to be the focal point under the Constitution of India. In fact, the novel premise that discrimination on the basis of sexual orientation and transgender identity is in effect discrimination on the basis of “sex” (which was elucidated in Bostock) was already relied upon and accepted by the Indian Supreme Court in Navtej.

The Indian Supreme Court follows the doctrine of  broad separation of powers instead of a strict one, which allows it to be actively involved in formulation of policies by holding the executive accountable to its actions, and sometimes replacing it in instances of gross failure. This is especially when the issue concerns the enforcement of socio-economic rights of the economically marginal section of Indian society. In this light, the day is not far when the Supreme Court finds a way to address the problem of “remedies” (in a claim of discrimination), through its all-powerful tool of enforceable “guidelines” under Article 142. For want of legitimacy and uniformity, it is better if the Parliament instead of the judiciary acts to address this long over-due (in)action in a participative and deliberative manner.

Our guest writer Vatsal Patel is a final-year BA. LL.B. (hons) student at the Institute of Law, Nirma University (India). His research interest lies in constitutional and human rights law.