By Rajat Maloo
Introduction
Presently, India lacks a comprehensive law to address several forms of discrimination prevalent in the society. Although, the Constitution guarantees equality to all, cases of discrimination continue to be witnessed in all spheres of social, economic and political life even. Existing constitutional protections against discrimination under articles 14, 15, 16 and 17 are not sufficient and need to be strengthened with additional statutory protections in order to realize their intended purpose. In the past few years, there have been several attempts made to draft a comprehensive anti-discrimination legislation (‘ADL’). In 2016, Dr. Shashi Tharoor introduced the Anti-Discrimination and Equality Bill in the Parliament. More recently in January 2020, the Centre for Law and Policy Research released a well-designed Equality Bill[1] for India. These legislations seek to curb discrimination on certain well-defined ‘protected characteristics’.
While the Constitution of India guarantees the fundamental right to equality which protects an individual from discrimination on certain grounds against the State, an ADL is broader and more comprehensive in terms of the kind of discriminations it seeks to address and applies to both government and private actors. The most contentious issue while drafting an ADL is to determine the grounds/traits/characteristics on which discrimination shall be prohibited. For several jurisdictions with an existing ADL, inclusion of ‘socio-economic disadvantage’ (‘SED’) as a ground, has been subject to numerous debates. Relying on the principles of discrimination law, first, I argue that SED should be considered a protected characteristic in Indian ADL, and secondly, I address major concerns and objections regarding its inclusion.
Arguments for inclusion of SED in Indian ADL
In the Indian context, an ADL must take into consideration the fact that India is a pluralistic society with a history of socio-economic inequality which manifests in myriad forms. Consequently, it is imperative for a comprehensive ADL to incorporate all grounds on which groups are discriminated. SED should be included as a protected characteristic as, first, it is a valid basis to classify cognate groups based on disadvantage they face ; second, it causes illegitimate and pervasive social bias; and third, SED is interlinked with other protected grounds.
Classification in Cognate Groups on the Basis of Disadvantage
For a characteristic to be protected under any ADL, it must be able to classify persons into cognate groups with a significant advantage gap between them.[2] A group may be historically disadvantaged due to a gap in terms of political rights, socio-cultural status or access to basic materials such as schools and hospitals etc.[3] A group of socio-economically disadvantaged persons—based on their income, earnings and/or education—are at a significant disadvantage as compared to others.[4] An individual’s socio-economic condition, when living in poverty can result in ‘discrimination, stigmatization and negative stereotyping’ which can lead to an unequal access to the same quality of education, healthcare and other essential services.[5] For instance, employers screen applicants based on credentials which are closely linked with their socio-economic standing. Similarly, many a time, schools place wealthier students in advanced classes with better and experienced teachers which causes significant disadvantage for the poor students. In such a case, education which should ideally work as a force to remove inequalities in society, fails to achieve its objectives and rather perpetuates economic inequality due to SED.
Apart from such direct material disadvantage caused by SED, an individual also faces disadvantages in terms of social standing and political expression. An instance of how this transpires in reality can be found in something as basic as voting in an election which requires a voter to have an identification proof which is difficult for the poor to obtain.[6] Due to poverty as well as the resultant social exclusion, such persons have limited access to legal justice and fundamental rights. This impedes their full and effective participation in society, in particular, limiting the chances to secure quality education, healthcare, housing and employment.[7] Hence, SED leads to a creation of cognate groups in the society where the poor due to their socio-economic conditions are relatively disadvantaged. This group is disadvantaged socially, economically and politically in terms of access to resources and other necessities required to lead a dignified life. Protecting discrimination on the grounds of SED is a first step towards breaking these barriers and the vicious cycle of poverty which keeps perpetuating their disadvantaged status. As SED by its very nature impedes an individual’s right to education, right to dignity and right to work, protecting it in an ADL provides a holistic response to SEDs, involving both constitutional rights and equality-based arguments.[8] More importantly, an ADL will also lead to sub-conscious changes within the society which has normalized discrimination on SED grounds for a long time. Altering the psyche of the people will take time and efforts; an ADL shall act as a first step in this regard as well.
Illegitimate and Pervasive Social Bias
ADLs are supposed to protect those traits which are subject to illegitimate and pervasive social bias[9] regardless of the individual’s responsibility in acquiring them.[10] Essentially, a person’s opportunities must not be determined merely by a trait which is beyond one’s control and is irrelevant to one’s capability. An individual’s poor socio-economic condition leads to a pervasive social bias in the minds of others in the society, such as employers, housing developers etc.[11] Moreover, this bias is illegitimate as first, discriminating merely on the basis of an individual’s socio-economic condition is unreasonable and like any other illegitimate stereotype, the socio-economic stereotype tends to ignore the other aspects of an individual’s life;[12] and second, it is not a metric of a person’s capabilities. Determining opportunities on the basis of traits and characteristics that people cannot control, undermines the ideals of self-determination and social mobility.
While constitutional protections in India[13] (and several other jurisdictions) lay down grounds which are immutable and corporeal (such as race or sex), ADLs include other non-corporeal grounds such as marital status and food preference. The rationale for protecting such characteristics, which are voluntary and not necessarily immutable, is that historically, society has unreasonably discriminated against such a group which must be prohibited.[14] The same rationale also applies to SED even though such a disadvantage may be a result of the voluntary choices made by an individual. Hence, SED being an illegitimate and pervasive social bias, must be protected.
SED’s Intersection With Other Protected Grounds
While considering discrimination and bias against the SEDs, it is imperative to understand its intersection with other grounds such as caste and gender. Historically, poverty has been linked to caste based divisions within the Indian society.[15] The groups which suffer discrimination on caste and gender grounds, more often than not, are disproportionately represented among people living in poverty.[16] Resultantly, corporeal grounds such as caste and gender are associated with SED and both of them perpetuate each other.[17] Due to this entanglement, the policies that discriminate on the basis of SED tend to have an adverse impact on other protected groups such as scheduled castes and women.
Moreover, regardless of the other traditional grounds such as caste and gender, the poor, only by the virtue of their SED, suffer from stereotypes, prejudice, and stigma.[18] It necessitates a comprehensive and robust ADL which takes into account the peculiar nature of India’s historically socio-economically disadvantaged groups.
With the inclusion of SED as a ground, the law is radically strengthened to embrace a substantive conception of equality which can redress material disadvantage, tackle systemic poverty and combat stereotyping caused due to SED.[19] It will also assist in effectively combating other forms of discrimination and the intersectional stigma that socio-economically underprivileged persons suffer from by providing penalties for discrimination. Exclusion of SED on the other hand will leave individuals facing only such forms of discrimination without any legal remedy as currently, Indian discrimination law fails to consider the socio-economically disadvantaged group under any extant anti-discrimination law.
Addressing Concerns and Objections
I shall now address three major objections faced by SED’s inclusion in other jurisdictions such as the U.K. and Ireland which might also be raised in the Indian context. I argue that, a) definitional concerns, b) characterization of SED as a problem of distribution rather than discrimination and c) enforcement concerns, do not impede its inclusion as a protected characteristic.
Definitional Concerns
A major concern regarding incorporation of SED as a protected ground is its imprecise nature which leads to definitional problems.[20] A definition which lacks specificity may over or under include, thereby, defeating the purpose of the ADL to protect specific characteristics.[21] This issue is especially tricky for a jurisdiction like India with a large chunk of population just above the poverty line and a clear delineation is nearly impossible.
However, merely the difficulty in defining SED is a poor reason to allow this form of discrimination to continue and deny the poor a dignified existence. None of the grounds protected by ADLs are amenable to a clear-cut, categorical definition. Several abstract definitions of other discriminatory grounds such as sexual identity, religion and faith have not prevented the ADLs across jurisdictions as well as the Indian legislative bills from incorporating such grounds.[22] Further, this concern can be addressed simply by specifying certain clear parameters/indicators which are geared towards specifically protecting those who suffer discrimination due to SED. The definition should not be abstract, rather should be able to assess an individual’s past, current and perceived financial situation. Section 2(xx) of The Equality Bill, 2020 is a good attempt at defining SED as ‘…a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications’.[23] However, the ALD must be more precise in defining a person ‘disadvantaged by poverty’ to ensure certainty in application.
SED as an Issue of Maldistribution?
An argument is made that SED should be addressed through welfare measures rather than an ADL.[24] The SED experienced by the poor is often characterized as a problem of maldistribution—merely an inevitable byproduct of neutral economic forces—rather than an issue of misrecognition which requires an ADL.[25] It is argued that discrimination law is primarily structured around addressing misrecognition (which is an unreasonable and negative stereotype related to a group), and is seen as an inept tool for addressing maldistribution.[26]
However, this dichotomy falls short due to two reasons. First, it does not appreciate the extent to which the poor suffer from misrecognition—individuals who are poor are subject to prejudice and are stereotyped as being inferior—which hampers the ability to actualize their potential. Second, policies addressing maldistribution and misrecognition should be seen as complementary rather than competing with one another. Inclusion of SED does not mean that ADL alone will succeed in combating SED, rather, it will serve as an addition to the policies striving towards economic redistribution. Hence, welfare measures per se do not preclude the necessity to include SED as a protected ground.
Enforcement and Excessive Litigation Concerns
Another possible objection which has been raised in other jurisdictions is that as so many policies can have a disparate impact on the poor, it may open floodgates to an overwhelming number of suits. Although the same objection might be relevant in the Indian context, as a matter of principle, this argument is not convincing because the fact that discrimination is prevalent should not be a reason for allowing it to continue.[27] Moreover, even if not all individuals suffering discrimination are able to approach the courts to enforce their legal rights, research suggests that people tend to conform their behavior to ADLs regardless of the possibility of enforcement.[28]
Conclusion
For India, with its myriad grounds of discrimination, it becomes all the more important for an ADL to not leave any possible ground unprotected. ADLs represent a moral and political commitment to the ideals of social mobility and self-determination. Accordingly, they ought to protect traits that classify cognate groups on the metric of disadvantage, are subject to pervasive and illegitimate social bias and may further perpetuate other grounds of discriminations such as caste and gender. Further, definitional concerns, characterization of SED as an issue of economic policy and enforcement concerns do not impede its inclusion. Lastly, the benefit of any ADL is not captured by the success rate of the discrimination lawsuits but the psychological effects it create by publicly condemning a ground of discrimination.
The author, Rajat Maloo, is currently a law student at the National Law School of India University (NLSIU), Bangalore.
[1] Draft Equality Bill, 2020, Centre for Law and Policy Research, can be accessed here <https://clpr.org.in/wp-content/uploads/2020/01/Equality-Bill-2020-17-Jan-2020-1.pdf>.
[2] Tarunabh Khaitan, A Theory of Discrimination Law (1st edn, OUP, 2015) 30.
[3] Ibid 51.
[4] ‘Tackling Socio-Economic Inequality In The UK Is An Urgent Human Rights Issue’ (Each Other, 23 January 2019) <https://eachother.org.uk/tackling-socio-economic-inequality-in-the-uk-is-an-urgent-human-rights-issue/> accessed 5May 2020.
[5] United Nation’s Committee on Economic, Social, and Cultural Rights, General Comment No. 20, (2 July 2009), <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?key=92g0+9FnI5fX/ePqHxWObPpm//kusKEXT+B4cp/uCKo3nfHdrBLzv7eEhjZdFcf4&Lang=en > accessed 5 May 2020.
[6] Danieli Evans Peterman, ‘Socioeconomic Status Discrimination’ (2018) 107 Virginia Law Review 1283, 1286; S Rukmini, ‘India’s Poor are Also Document Poor’ (LiveMint, 6 January 2020) <https://www.livemint.com/news/india/india-s-poor-are-also-document-poor-11578300732736.html>.
[7] Tamas Kadar, An Analysis of the Introduction of Socio-economic Status as a Discrimination Ground (Equality & Rights Allaince, 2016) 20.
[8] Ibid.
[9] Peterman (n 5) 1294.
[10] Ibid 1285.
[11] Sohail Ahmad, ‘Housing Inequality Amongst Disadvantaged Communities in India’ (United Nations University, 18 December 2012) <https://unu.edu/publications/articles/housing-inequality-amongst-disadvantaged-communities-in-indian-cities.html>.
[12] Peterman (n 5) 1300.
[13] The Constitution of India 1950, a 15.
[14] Khaitan (n 1) 45.
[15] Sukhadeo Thorat and Katherine Newman, ‘Caste and Economic Discrimination: Causes, Consequences and Remedies’ (2007) 42(41) EPW 4121, 4122.
[16] Sandra Fredman, ‘The Potential and Limits of an Equal Rights Paradigm in Addressing Poverty’ (2011) 3 Stellenbosch L.R. 566, 567.
[17] Thorat and Newman (n 13) 4121.
[18] Ibid 4122.
[19] Paul McKeown, The Inclusion of Socio-Economic Status in Equality Legislation, (2019) 173.
[20] Jamie McLoughlin, ‘Proposal to make ‘Disadvantaged Socio-economic Status’ a Prohibited Ground of Discrimination under Irish Law’ (Oxford Human Rights Hub, 13 March 2018) <https://ohrh.law.ox.ac.uk/proposal-to-make-disadvantaged-socio-economic-status-a-prohibited-ground-of-discrimination-under-irish-law/> accessed 4 May 2020.
[21] Kadar (n 6) 18.
[22] Anti-discrimination and Equality Bill 2016, s 3.
[23] The Equality Bill 2020, s 2(xx).
[24] Khaitan (n 1) 136.
[25] Peterman (n 5) 1320.
[26] Peterman (n 5) 1321.
[27] Peterman (n 5) 1346.
[28] Peterman (n 5) 1351.
The Journal of Indian Law and Society 