The Constitutional guarantee against discrimination under Article 15 (1) is limited to certain grounds of discrimination, but an intersectional lens can address the grievances of individuals who have faced violence and discrimination on multiple grounds
We as part of Indian Jurisprudence have always focused on segmented groups to promote diversity and equality. However, equality law and discrimination law cannot be confined to Article 14 and Article 15 of the Indian Constitution; a whole spectrum of intersectionality is required.
A conceptual shift away from single axis equality and towards complex equality had been stated in Navtej Johar v. Union of India where Justice Chandrachud’s concurring opinion recognised that claims of discrimination can be made on more than a single ground under Article 15 of the Constitution of India.
The case of Patan Jamal Vali v. The State of Andhra Pradesh has played a major role in the legal discourse around the single-axis approach to violence, discrimination and intersectional discrimination. The Supreme Court, after the plight of a blind Scheduled Caste woman who was raped, reached the bench of Justice DY Chandrachud and JJ Shah, after which an in-depth analysis of intersectional oppression was done. After a comprehensive understanding of the aforementioned Supreme Court judgment, we eventually came up with some inherent issues:
1. Whether the SC has meandered on to a wholly irrelevant path in the judgment by bringing in an academic concept of ‘intersectionality’ or is the approach correct?
2. Whether the concept of ‘intersectionality’ should be imbibed in Indian jurisprudence or should it be shunned and why?
3. The judgments of SC or Delhi HC where intersectionality could have been used by the courts but was not been so done.
Though the Constitutional guarantee under Article 15 (1) of the Indian Constitution is constricted and limited to certain grounds of discrimination, an intersectional lens used in the instant case is useful and provides a correct approach to addressing the specific set of lived experiences of those individuals who have faced violence and discrimination on multiple grounds. An intersectional analysis requires consideration of the distinct experience of a sub-set of women who exist at an intersection of varied identities. The concept of intersectionality is to be introduced in the legislative framework for a better understanding of complex social realities.
Intersectional approach in the instant case:
In its judgement, the Supreme Court used the framework of intersectionality to critique and question the correctness of past interpretations of Section 3(2)(v). Intersectionality claims that “oppression arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone.”
Apropos Para 14, in terms of section 3(2)(v), the Court states that the phrase “on the ground” is an instance of a statute only recognising a single-axis model of oppression which requires that a person prove a discrete experience of oppression suffered on account of their caste. However, the problem with such statutory formulations according to the Court is that when the oppression is intersectional, it is difficult to separate out various grounds for oppression because they operate together. When a disabled, Scheduled Caste woman experiences sexual assault, she does not know whether it was because she was a woman or disabled or Scheduled Caste. Her experiences are not disjunctive, but a combination of all her identity markers. According to the Court, the amended section by doing away with “on the ground” enables an intersectional approach.
Discrimination does not come in discrete packets of experiences based on a single ground; its legal basis must be broadly conceived to allow real and diverse experiences to be recognised when based on more than one ground. Thus, the limited scope of Article 15 (1), i.e., signifying the special sense of causation in discrimination, highly isolates the ways of justice and equality. The courts must address and unlade the qualitative impact of the various identities an individual might have on the violence, discrimination or disadvantage being faced by them.
Only considering the challenges of intersectionality would enable a grounded employment of what methodological possibilities of pursuing intersectionality in any meaningful way are. The whole concept of intersectionality emphasises that there is no singular kind of marginalisation experienced by everyone who shares an intersectional identity, though there may be patterns or similarities between the experiences of individual. Be it the Joseph Shine case, the Sabarimala Temple Case, or the Nergesh Meerza case, all facets have their own sphere of discrimination. Therefore, if we confine the concept to a particular category, it will defeat its purpose.
Walking through the precedents, in Air India v Nergesh Meerza, an air hostesses working with Air India challenged the constitutional validity of the Air India Employees Service Regulations (Service Regulations) requiring female flight attendants to retire under three circumstances: a) upon reaching 35 years of age, b) upon getting married within 4 years of service, and c) upon first pregnancy. This case was argued as a claim of sex discrimination which also devolved upon marital status, age and pregnancy, all of which can qualify as “considerations” incidental to sex, or even as analogous grounds. The reasoning that discrimination can be caught when only made on the ground of sex is as myopic as is incorrect. It strips the prohibition of sex discrimination of any necessary content and stands as a rejection of discrimination, whether single ground or intersectional, by failing to account for the intersectional nature of discrimination, which does not operate in isolation of other identities like age and marital status and the socio-political and economic contexts of the society.
The isolated reading of sex discrimination not only limits the ambit of what counts as discrimination based on “sex” but also the possibility of classifying discrimination as intersectional, i.e., based on multiple intersecting analogous grounds. The court’s analysis in Air India is an example of how principles of equality and non-discrimination can be construed to ignore and justify discrimination which cannot easily be fitted into a transfixed and non-interactive category of sex discrimination. In this way, the court’s reading of the phrase “on grounds only of” stands for dismissing both a contextual and intersectional analysis of discrimination under Article 15.
Moving away from a disaggregated approach to understanding non-discrimination and liberty, and instead adopting a holistic cross-sectoral, intersectional approach that looks at connections and possibilities that might enrich the scope of non-discrimination, involves a shift that forces a re-examination of a range of materials hitherto inadequately explored in constitutional jurisprudence and legal research on non-discrimination. However, what remains to be addressed is the problematic approach of justifying discrimination based on more than one ground.
Another judgement by the Karnataka High Court, upholding a ban on wearing of the Hijab within classrooms, by imposing restriction on female Muslim students from wearing the Hijab is one that has the effect of discriminating against them on account of both their religious and gender identities.
The discrimination that Muslim women suffer through headscarf bans operates at the margins of race, religion and gender. It is a form of intersectional discrimination which leads to a quantitative increase in the amount of discrimination as well as a qualitative change in how multiple discriminations undermine Muslim women’s agency. The structure of single axis equality, with its focus on symmetry and comparison, is inappropriate where there is more than one ground for discrimination. Methods that treat equality around a single axis as an either/or choice between criteria such as gender and religion are inadequate for addressing acute and subtle form of intersectional discrimination.
Therefore, the Karnataka notification which in effect restricts female Muslim students from wearing Hijabs along with their uniforms has a discriminatory effect that intersects at least with two personal identities: gender and religion. Hence, complex equality, unlike single axis equality, is an alternative formulation of the problem which changes the frame for analysing patriarchy.
An analysis of systems of oppression, domination or discrimination unravels the simultaneity of subjugation. Intersectionality is an analytical tool wielded by those facing multiple subordinations. It can be a powerful mechanism for building coalitions across the interlocking systems of power that shape an individual life. It should primarily be used as an organising principle which calls for reflexivity in the study of social characteristics, such that one marginality is not substituted for another and lived experiences are not treated as generic and undifferentiated. We cannot perceive a particular area for such a theory to be effective because we cannot identify the patriarchies that exert the hegemonic control over different social inmates.
Therefore, unless we adopt an extensive approach to address this complex discrimination, we will not be able to redress the marginalised disadvantages faced by individuals in the society. It is important to not give up intersectionality as it has within itself the potential to address these challenges.
The writer is a student of Law at University Of Kashmir. [email protected]