Open Access Research Article
Revisiting Article 15 Through An Intersectional Lens (By: Shreya)
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Article Details
Revisiting
Article 15 Through An Intersectional Lens
Authored By: Shreya
Research Scholar,
Dr. Ram Manohar Lohia National Law University
Abstract
Experiences of discrimination are a
subjective concept. Discrimination can be faced due to a multitude of factors.
A man and woman might experience discrimination differently; A dalit man might
experience discrimination solely on basis of his caste while a dalit woman
might experience it on basis of her caste and her gender, acting together.
Queer dalit women might face triple discrimination, due to first her caste,
then her gender and then due to her sexual orientation. Experiencing
discrimination can induce trauma and helplessness irrespective of the placement
of an individual in the social position in our society. ‘Equality’ and
‘non-discrimination’ are one of the goals of our Constitution. While our
Constitution prohibits discrimination on certain grounds mentioned in Articles
15(1) and 16(2), the judicial interpretations fail to suffice
non-discrimination when two or more grounds interact with each other. The
narrow interpretation of Article 15, especially the phrase ‘only on ground of’
rejects the concept of Intersectionality. This paper is an attempt to examine
Article 15 and argue that reading provisions with an intersectional perspective
is the need of the hour.
Introduction
We as a nation take immense pride in
our ‘diversity’ and peaceful coexistence of people among all sorts of
differences. Article 15 prohibits discrimination ‘only’ on grounds of religion,
race, caste, sex, place of birth. This paper seeks to examine how the
interpretation of a non-discrimination clause has narrowed down its application
to single points of discrimination thus rejecting the very real problem of
discrimination due to overlapping circumstances. The aim is to examine the
jurisprudence relating to the interpretation of clause (1), especially the
phrase “on grounds only of religion,
race, caste, sex, place of birth or any of them”.
Professor Kimberly Crenshaw[1] is
attributed the credit for coining the term ‘Intersectionality.’ She argues that
oppression can emanate from interaction of multiple socio-economic factors;
that the American law protected black men from racial discrimination and it
protected white women from gender discrimination, however, black women stood at
the intersection of these two kinds of discrimination. The experiences of black
women can neither be defined by race nor gender alone but by both operating
simultaneously.
Crenshaw defines Intersectionality as
a form of “oppression which arises out of combination of various kinds of
oppression which together produce something unique and distinct from any one of
discrimination standing alone” Ben Smith[2]
argues that a single axis approach to violence and discrimination renders,
minority groups within broader groups, invisible since it formulates identity
as “totemic” and “homogenous”. Nitya Iyer[3]
argues that a law based on a single axis model forces claimants to ignore the
reality being faced by them and forces them to fit into the pre-fabricated,
rigid categories. This would weaken their claim as they won’t always be able to
simplifly their story in accordance with the dominant understanding of how
discrimination on basis of a given characteristic occurs.
Understanding Intersectionality in
the Indian context is the need of the hour. This concept can be applied to
understand and finds solutions to the plights of men and women who face
discrimination due to overlapping of caste, sexual orientation, gender, place
of birth or other grounds with each other. In order to understand how a narrowed
interpretation of Article 15 in
various judgements has rejected the
idea of Intersectionality, this paper delves into two inquiries: first, the
previously made interpretations of Article 15(1) by various Courts have
rejected to recognise intersectional discrimination; and secondly, how Article
15(1) can be reimagined to accommodate and address intersectional
discrimination.
Analysis Of Article 15(1) In Light
Of Intersectionality
Securing equality is an important goal of our
constitution. Honourable Justice D. Y. Chandrachud says that “The equality of
all human beings entails being free from the restrictive and dehumanizing
effect of stereotypes and being equally entitled to the protection of law. Our
Constitution has willed that dignity, liberty and equality serve as a guiding
light for individuals”[4].
Article 14 of the Indian Constitution
contains the genus of Right to Equality, species of which are followed in
Article 15 (non-discrimination clause), Article 16 (equality of opportunity in
matters of employment), Article 17 (abolition of untouchability) and Article 18
(abolition of titles). Clause (1) of Article 15(1) lays down:
“The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.”
That discrimination based ONLY on
either of the grounds mentioned above will amount to violation of Article 15.
If the discrimination is due to say race + x(which can b any factor), then such
a discriminatory law will not be violative of Article 15. This interpretation
was upheld by the Supreme Court in Air
India v. Nergesh Mirza[5].
Several regulations were challenged on ground of causing disparity between pay
and promotional opportunities of male and female in-flight cabin crew.
Retirement age for men was 58 whereas for women it was 35 or marriage (within 4
years of service) or pregnancy, whichever is earlier. Even though this
difference was on basis of gender, these regulations were upheld in part and
the court opined that the non-discrimination clauses of the Constitution i.e
Article 15(1) and Article 16(2) prohibit discrimination solely on the grounds
mentioned, in this case, sex. It further held that the Constitution does not
prohibit State from causing discrimination on ground of sex coupled with any
other consideration. This interpretation strips Article 15 of its essential
content. It not only limits the ambit of Article 15 but also rejects the
possibility of interpreting discrimination
as Intersectional. Such a formalistic and narrow interpretation
of Article 15 (1) renders the constitutional guarantee against discrimination
meaningless and stands as a rejection of intersectional discrimination.
This view was rejected in 2018 in Navtej Singh Johar and Ors. vs. Union of
India[6],
where the court opined that such an interpretation “fails to take into account the intersectional nature of sex
discrimination, which cannot be said to operate in isolation of other
identities, especially from the socio-political and economic context. For example,
a Rule that people over six feet would not be employed in the army would be
able to stand an attack on its disproportionate impact on women if it was
maintained that the discrimination is on the basis of sex and height. Such a
formalistic view of the prohibition in Article 15, rejects the true operation
of discrimination, which intersects varied identities and characteristics”.
The Honourable Court relied upon its
previous judgement of Anuj Garg v. Hotel Association of India[7] to
overrule Nergesh Mirza. In Anuj Garg,
constitutional validity of section 30 of Punjab excise act, 1914 was challenged
on ground that it is violative of Article 14 and Article 15. The said provision
prohibited employment of any man below 25 years of age and any woman where liquor
or intoxicating substances were served in public.
In Patan Jamal Vali v. State of Andhra Pradesh[8],
In this case a Blind Dalit woman had been raped. The Supreme Court has opined
that assault is a result of interlocking of different relationships of powerplay
at work. Justice D.Y. Chandrachud says that “When the identity of a woman intersects with, inter alia, her caste,
class, religion, disability and sexual orientation; she may face violence and
discrimination due to two or more grounds. Transwomen may face violence on
account of their heterodox gender identity. In such a situation, it becomes
imperative to use an intersectional lens to evaluate how multiple sources of
oppression operate cumulatively to produce a specific experience of
subordination for a blind Scheduled Caste woman”
This indicates a clear judicial
approval for incorporation of theory of Intersectionality into reading of
provisions.
Justice J.S Verma committee report
was appointed to make recommendations to The Indian
Criminal Law after the Nirbhaya Rape
Case. It has several references to Intersectionality. In Appendix 3/Part
3/Clause 16(9), the committee recommends that “no woman shall be unfairly
discriminated on grounds of gender including discrimination by virtue of a
woman belonging to a sub-sect of caste, religion, region or race.”
The Committee observed that for a society to
be based on gender equality, along with ensuring non-discrimination on basis of
gender, emphasis must also be placed to ensure non-discrimination due to any
other factors like caste or religion along with gender.
Shreya Atreya has proposed a model of
‘Intersectional Integrity’ to deal with the problem of violence against women
from intersectional backgrounds. She points out that “a failure to consider violence perpetrated based on multiple identities
results in an inaccurate portrayal of the violence at issue which may impact
the ability to obtain relief. On the other hand, a comprehensive appraisal of
the intersectional nature of the violence can translate into an appropriate
legal response.”
The above analysis stresses a need
for the courts to read and recognise the theory of Intersectionality into the
provisions of the constitution; Thus unpacking the impact and addressing the
discrimination, violence, or disadvantage faced by them due to their placement
in the societal structure.
Article Information
Revisiting Article 15 Through An Intersectional Lens (By: Shreya)
Authors: Shreya
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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