Breaking New (Capacious) Ground: India’s Tryst with Anti-Discrimination Law

Vandita Khanna

Jindal Global Law School, India

A recent Indian High Court judgment holds significant potential to change how anti-discrimination law captures the complexity of discrimination in Indian society. Government policy was to provide financial support to families of deceased employees but expressly excluded married daughters from the list of beneficiaries. The High Court of the state of Madhya Pradesh held that the policy was discriminatory on the grounds of sex. In this post, I argue that the judgment adopts a capacious or expansive interpretation of the legal grounds of discrimination. In doing so, I hope to highlight the importance of previously neglected High Court jurisprudence in Indian legal academia – both in terms of its critical insights and ability to shape the law in the highest court, the Supreme Court.  

Article 15(1) of the Indian Constitution guarantees that ‘[t]he State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ At the outset, the textual framing of Article 15(1) in itself poses several challenges for anti-discrimination lawyers and scholars. Firstly, unlike the Canadian Charter of Human Rights, Article 15(1) contains a closed and exhaustive list of protected grounds. Recent jurisprudence has successfully identified the additional grounds of sexual orientation and gender identity as intrinsic to the meaning of ‘sex’ under Article 15(1). Neither of the Supreme Court judgments, however, consider them to be analogous grounds, a technique used by Canadian courts to expand their (open) list. Further, there is a need to reflect and redress disadvantage on other grounds that may not map onto existing grounds as neatly (e.g. disability, marital status, property and political opinion). 

Secondly, unlike the UK Equality Act 2010 or the South African Constitution, the Indian text does not expressly prohibit ‘combined discrimination’ or discrimination on ‘one or more grounds’ respectively. Early constitutional jurisprudence was clear in stating that Article 15(1) prohibits discrimination ‘only’, ‘and only on the ground of sex’ but does not prohibit discrimination on the ground of sex ‘coupled with other considerations’. This interpretation of the constitutional protection seemingly stands in contrast to the dynamic and fluid social conditions and experiences of discrimination. The question I then pose is: how can Article 15(1) within its existing contours (i) protect people whose diverse identities lie at the intersection of multiple grounds, and (ii) expand its protection to grounds that the provision does not recognise within the closed list in its current form? 

The interpretation of Article 15(1) in early constitutional jurisprudence has been called into question by the 2020 High Court judgment in Meenakshi Dubey v. M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. and Others. Recall that this case highlights the unique disadvantage faced by married women, which is distinct from that faced by unmarried women as well as men, irrespective of their marital status. The claimant argued that the policy violated Article 15(1) of the Indian Constitution. The High Court could have followed the early constitutional trajectory referred to above and held that the policy at hand discriminated on the grounds of sex plus ‘other considerations’ (that is, marital status) and was thus permissible under Article 15(1). However, instead of ousting the claim altogether, it shaped the discrimination claim of married women as one of sex-based discrimination for depriving the ‘married daughter from [the] right of consideration for compassionate appointment’ [para 34]. 

The High Court understood the category of ‘sex’ capaciously to capture whole identities of individual claimants before the court. In framing the discriminatory experience of married women as sex-based discrimination, the Meenakshi Dubey judgment adopts a strategic approach in Indian constitutional thought. The decision acknowledges intersectional discrimination claims, thereby ensuring Indian antidiscrimination law reflects lived experiences. 

An expansive or capacious approach, as understood by discrimination law scholars, holistically engages with discrimination on protected grounds as well as other grounds. For example, the ground of ‘sex’ protects all women from discrimination – this includes Dalit women, black women and Muslim women, among others. Similarly, Meghan Campbell makes a convincing case for why the category of ‘women’ guaranteed protection under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is capacious enough to grasp the salience of gender-based poverty. In this manner, protected grounds though referring singularly to one axis (such as sex) hold the conceptual capacity to accommodate whole identities. One can also read the Madhya Pradesh High Court’s decision, framing the discriminatory experience of a married woman as one of sex-based discrimination, as capaciously interpreting the protected ground of ‘sex’.  

An important advantage of a capacious approach to interpreting discriminatory grounds is that it helps better reflect the social experiences of discrimination in law. Further, it helps avoid navigating through the challenges inherent in the wording of Article 15(1) that prohibits discrimination ‘on grounds only of’.  Finally, it offers an opportunity to explore the possibilities of capturing additional axes of disadvantage and discrimination within existing grounds that were not contemplated at the time of framing of the Constitution but are nonetheless fundamental to whole identities of claimants. Such a capacious reading of existing grounds has significant advantages for Indian constitutional law. It enables, despite the absence of an anti-discrimination statute, constitutional recognition of discrimination based on grounds such as disability, poverty and ageism. It also has the potential to bring to light social conditions and experiences that the law has previously ignored as anti-discrimination jurisprudence had regarded them as irrelevant.  

Vandita Khanna is a Research Fellow at the Centre for Public Interest Law, Jindal Global Law School, India. 

Suggested citation: Vandita Khanna, ‘Breaking New (Capacious) Ground: India’s Tryst with Anti-Discrimination Law’ IACL-AIDC Blog, (22 September 2020) https://blog-iacl-aidc.org/2020-posts/2020/9/22/breaking-new-capacious-ground-indias-tryst-with-anti-discrimination-law