What happens when we read the Articles on Non-Discrimination and Liberty in the Constitution of India alongside one another? In this post, Kalpana Kannabiran revisits her seminal monograph Tools of Justice: Non-Discrimination and the Indian Constitution (2012) to argue, with illustrative legal judgements, the faultlines, challenges and opportunities embedded in an intersectional reading of these Articles.
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In my work on non-discrimination as a fundamental right in India, I set out to look at the problem of justice and its relationship to rights. Most work on constitutional jurisprudence in India till then had focused on equality and life, with liberty largely confined to the question of personal liberty in the context of torture or incarceration — and the term ‘positive discrimination’ (a contradiction in terms, in my view) was used to describe ‘a facet of the equality principle’, namely reservations. In sociology, on the other hand, the sociology of caste in India had focused for the most part on inequality, difference and hierarchy. The experience of social movements, however, points in a third direction that does not find adequate or full articulation in either of these disciplinary configurations. It is this gap that served as my point of departure in exploring the relationship between liberty and non-discrimination with specific reference to the Constitution of India. I return briefly to this work here.
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In imagining the idea of justice or exploring its frontiers, it is important to move beyond the traditional reading of equality with life. Within the range of possible articulations of constitutionalism, the connection between liberty and non-discrimination is critical. Exploring this connection methodologically would mean (redeploying Ranajit Guha (1983) with a twist) comprehending apparently unanticipated arguments by means of analogy, ‘by an “awareness and understanding of a relation between forms”. Just as one learns the use of a new language by feeling one’s way from the known elements to the unknown, comparing and contrasting unfamiliar sounds and meanings with familiar ones’, so also may we revisit constitutional categories and discourse, to map presences and absences, interrogate established usages and propose new ones that draw from the old — by affirmation, extension, negation, comparison or analogy. This is a route I have been exploring since that early work over a decade ago.
The relevance of this exploration lies in the increasing scale of violent exclusion against a series of marginalised groups — a snowballing constituency that is constantly in a state of spiraling exclusion with more and more groups being ousted to the margins by a carceral state. What does a critical engagement with law and with public sociology mean in a context that has witnessed the routine perpetration of atrocity and unthinkable violence on entire communities?
The definition of discrimination adopted by the Constitution of India can be grasped from the text of the first two Clauses of Article 15 which guarantees non-discrimination:
15. (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.
Clause 15(1) speaks to the vertical application of the right to non-discrimination, between the state and the citizen; Clause 15(2) speaks to its horizontal application, between citizens inter se. The key to the meaning of the phrase ‘shall not discriminate’ in 15(1) is contained in 15(2) — subjecting a person to any disability, liability, restriction or condition (implicitly detrimental) on grounds of religion, race, caste, sex, place of birth or any of them would amount to discrimination. The idea of liberty is invoked in investing ‘discrimination’ with meaning: the substance of 15(2) is that no citizen’s freedom may be curtailed on the specified grounds.
‘Liberty’ is the subject of Article 21 of the Constitution of India:
Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law.
The denial of liberty, I have argued, inaugurates discrimination and provides the socio-political context for its perpetuation.
To illustrate: discrimination based on sex more than 75 years after the Constitution was adopted demonstrates troubling patterns in the jurisprudence on sex discrimination that seem to point to inescapability from discrimination based on sex. In general, the hazards of employment for women ranges from ‘difficult’ work that they were ‘naturally’ unsuited for, like ‘the movement amidst moving cargo and in the midst of huge cranes, forklifts etc. demanding quick movement of feet’ (A. M. Shaila and Another v Chairman, Cochin Port Trust and Others1995 (2) LLJ 1193) to the ‘sensitivities of sex and peculiarities of societal sectors’ (C. B. Muthamma v Union of India and Others, AIR 1979 SC 1868). Given this reality, courts have, with few valuable exceptions, found it expedient to choose a ‘pragmatic’ rather than ‘dogmatic’ approach in matters of equality based on sex (ibid.) that translates into making peace with public (dominant) morality and hostile environments.
Without dwelling on sex discrimination and its travels from binary to gender fluid contexts, I simply provide an anecdote from a reported case.
The nursing profession has historically been identified as a ‘female’ profession in India that draws on the nurturing, caring functions women must perform in patriarchal societies. It has been measured in terms of selflessness in ‘service’ that can never be monetised and therefore is always undervalued in terms of wages, and eulogised rhetorically. Enter the male nurse, who gets appointed as ‘Sister Tutor,’ who by virtue of service over two years becomes senior to female Sister Tutors. On attaining seniority, can he be denied promotion on grounds that the post is designated for ‘Senior Tutor (female)’? The respondent contended that in a predominantly female institution, a female nurse would be more suited to the duties of a Senior Tutor, and that the rule regarding eligibility is not based on sex alone but on the suitability of a female candidate and the corresponding unsuitability of a male candidate for the post. The court held that to prevent a male nurse Tutor to be promoted to the post of Senior Tutor (female) on grounds that he is not female amounts to discrimination based on sex alone (Walter Alfred Baid v Union of India and Others, 1976 AIR (Del) 302).
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The terms ‘social boycott’ and ‘untouchability’ encode practices that may then easily be replicated on newer or existing social groups that for one reason or another become targets of discrimination. How may we expand the idea of ‘hostile environments’ that found its full judicial elaboration in the case of Vishaka and Others v State of Rajasthan and Others 1997 — in response to Bhanwari Devi’s experience of sexual assault and, more importantly, her tenacious resistance to it — to speak to the convergence of discrimination with the loss of liberty? The intersection of caste atrocity not limited to Dalits but extending to other vulnerable castes like the one Bhanwari belonged to did not enter the reckoning in Vishaka v State of Rajasthan although it helps us grasp better the totality of ‘hostile environments’, as I have argued in my reflection on the assault of young girls in Budaun. How may it be applied to the context of the absence of routine barrier-free access and non-verbal communications — environments that promote the routinisation and normalisation of discrimination against persons with disabilities? Or to the enclavement of non-tribals in Scheduled areas, the constant and overbearing presence of the forest bureaucracy in those areas, and the forced segregation and exclusion especially of Muslims and their vulnerability to arbitrary and unlawful arrest and incarceration in the past decade? For these are all aspects of hostile environments that entrench discrimination through the curtailment of liberty.
How may we render the inarticulate premise articulate? How may we quite systematically set about queering the norm in judicial and constitutional praxis?
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The problem of tackling discrimination is that it is masked by multiple normativities that intersect and congeal, making it difficult to actually track its trajectories. A central aspect of the problem of normativities is their interlocking, which produces a condition of concentrated power and hegemony that silences articulation, distorts it or informs one form of domination with the technologies of power of another. Also critical is an understanding of convergence and intersections between the body politic/civil society and the state, and the structuring of private spaces by these multiple, interlocking normativities bolstered by state practice.
Article 15 and Article 17 (Abolition of Untouchability) of the Constitution of India, I argue, foreground the right of the citizens to a life free from the clouds of discrimination, thus divesting the power of the dominant majority. In other words, an intersectional reading of Articles 15, 17, 21 and 23 constitutes a defining aspect of constitutional morality — embodied in the justiciable right to non-discrimination for all those who experience structural, routinised and violent intolerance.
The exercise of power and force is central to the problem of discrimination and the denial of liberty. I suggest that we can fully understand the meanings of equality only through a careful investigation and analysis of discrimination and its interlocking with the negation of liberty. Violence and force are at the core of discrimination, and in fact the key elements that mark it apart from inequality.
Gandhi’s idea of civil disobedience and soul force are central to the workings of constitutional morality, an idea developed by Ambedkar during the era of constitution-making in the 1940s, specifically in the context of aggravated and violent discrimination against the castes situated at the bottom of the graded Hindu social order. Both these ideas — civil disobedience and constitutional morality — have been foregrounded in practice by social movements across India, in their theorising of discrimination, both horizontal and vertical, and the violence of normal times. The idea of liberty, of freedom, of azaadi, is an intrinsic part of the articulation of non-discrimination in these locales. While the problem of intersecting identities has often been invoked in the practice of politics and increasingly in constitutional litigation, the iterations of intersections, and the resolutions to intersecting and interlocking discrimination are more layered and complex.
In the ultimate analysis, an insurgent sociological imagination is indispensable to an understanding of the fields of constitutional morality and the possibilities of civil disobedience, as well as an intersectional understanding of the fundamental rights to liberty and non-discrimination as constitutive of any idea of justice.
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