(Jyotishka Guha is a fifth-year student at West Bengal National University of Judicial Sciences.)
Featured Artwork: The Problem We All Live With by Norman Rockwell 1964
The recent Pew Research Survey on Religious Tolerance has once again exposed the fact that while most Indians think religious tolerance is a valuable thing, they are hesitant in religious integration. Hesitancy is shown in inter-religious marriages and renting out houses to people of other religions. While marriage is a personal affair, the latter causes a hindrance for religious minorities, particularly Muslims, in getting housing and thus, affect their livelihood.
India does not have any special Anti-Discrimination Law. The only recourse is Article 15(2) of the Constitution which prohibits individuals from making such discrimination. Legal theorists[i] have argued that such discrimination should be addressed when it affects human dignity and one’s participation in social life. In this article, the author will show how both these criteria have proven to be ambiguous and ineffective when used as a standard by courts. It is to note that while discussing the dignity aspect, the author will be referring to cases of State-sponsored as well. The main argument is that dignity should not be used as a criterion in any discrimination adjudication relating to discrimination. Finally, the author will suggest that private discrimination should be adjudicated on the touchstone of proportionality.
It is important to understand that every type of discrimination need not be regulated by law. Hellman[ii] argues that only those kinds of discrimination need to be prohibited where a person discriminates based upon his inherent prejudice. These prejudices are based on certain immutable characteristics of the affected person such as race or religion. Any discrimination based on these characteristics is wrong because these characteristics are so intrinsic to someone’s identity that they cannot be changed by the concerned person. For example, in the Charu Khurana case the by-law which restricts women to be members of the makeup-artists Association, a private body, was held to be unconstitutional as such restriction was based upon the presumption that women cannot be makeup-artists and hence prejudicial against women.
Further is an analysis of cases from different jurisdictions where discrimination based upon immutable characteristics and prejudicial was held to be valid by relying on the standard of dignity and social participation.
Dignity
South African judge Ackermann[iii] argues that dignity provides the content for equality based upon which a claim of discrimination could be adjudicated. Thus, dignity is used as a standard. However, the issue arises in how to quantify dignity since it is very subjective in nature. In order to form a universal standard, the American courts have used the ‘African-American’ community as a comparable group. This is because this group has faced prolonged discrimination based upon their immutable characteristics. Now in Matthews vs Lucas where a government policy had restricted a social benefit only to the legitimate children once their parents die, a claim of discrimination against illegitimate children did not sustain because the court held that this discrimination was not as bad as discrimination based on race or nationality. Hence, the court did not apply the ‘strict scrutiny standard. However, being an illegitimate child is also an immutable status as it is beyond the control of the child. Secondly, the policy was meant for providing assistance to children who were dependents of the deceased parent. By making legitimacy as the only proof of dependency, the State presumed that illegitimate children are not dependents without any empirical evidence. Hence, such presumption was prejudicial.
Similarly emphasizing dignity creates an additional burden in South Africa. A complainant needs to show that not only there is discrimination, but also the discrimination threatens to perpetuate ‘patterns of group discrimination’. This could be shown either by two ways i.e., discrimination causes severe forms of group disadvantage or the discrimination gives ‘impermissible messages’[iv] about the group. Both the criteria have been proven ineffective. In Plessy vs Ferguson where separate passenger vehicles for Black and White were challenged, the US Court had held that as long as segregated facilities are equal in quality, African-Americans could be treated differently under the Segregation Laws. This was the controversial separate but equal doctrine. Hence, the court only focused on equality in terms of socio-economic entitlements and not the underlying prejudices. Similarly, the South African judiciary has not been able to define what it means by ‘impermissible messages’. Hence, in a case where legislation had excluded refugees from the job of private security guards, the court held it to be constitutionally based on the fact that citizens and permanent residents could prove trustworthiness more easily which is essential for this kind of job. Hence, the court itself showed its inherent prejudices against refugees by considering them ‘less trustworthy’.
Proportionality Test
This section points out why discrimination should be adjudicated based upon the proportionality standard. It advocates that an individual’s right could only be infringed if the same serves a legitimate goal and it must be the least intrusive effective method of achieving it. Thus, I suggest that courts need to ask three questions on any claim of discrimination. These are
- whether the ground on which the discrimination was made has any legitimate purpose;
- if yes, whether it is the least intrusive effective method;
- if no, does it lead to positive discrimination.
The legitimate purpose would be ascertained by the role of the person who has been discriminated. E.g.- A private school cannot discriminate against non-Muslim for the job of Urdu teacher because there is no relation between being an Urdu teacher and religion.
In Plessy vs Ferguson, the court should have looked into whether segregation of passenger cars between Blacks and Whites was necessary for travelling. Since the answer is negative and it does not lead to positive discrimination, so such segregation is discriminatory. Similarly in the South African case of private security guards, the owners argued that citizens would be more trustworthy than refugees, which is an essential criterion for being a security guard. However, even if it considered the owner’s apprehension to be reasonable, it should have looked at whether it was the least intrusive effective method. Thus, the court could have held that blanket exclusion of refugees was unjustified since there might be other effective ways to address the owner’s concerns. For example, a permanent contract of service could be granted only after a stipulated period. In case of positive discrimination, a person can give preference to a member of the community if it could be proved that members of that community face discrimination which affects their participation in social life. For example, in Zoroastrian Society vs UOI, Indian Supreme Court allowed a housing society to have a restrictive covenant. By such covenant, only Parsis could own houses in that society. While the court held that such covenant is valid since Parsis are a minority community and have a right to preserve their culture, it did not inquire whether Parsis face housing discrimination.
Social Participation
The social participation of the marginalized communities is one of the main facets of equality. Indian courts have used ‘social backwardness’ as a standard in an adjudication relating to affirmative actions to check their representation in various social sectors. However, sole emphasis on social participation has proven to be ineffective in an adjudication relating to discrimination. E.g.- the German court has allowed a hotel ban against a political leader because of his political ideology based on the fact that there were other hotels in the area.
By the proportionality standard, this ban would be discriminatory because there is no rational nexus between one’s stay in a hotel and political ideology. However, the argument of the hotel would be giving room to such a person would affect their business. This leads to a situation where one discriminates, not because of its own prejudices, but because of societal pressure.
John Gardner[v] has opined that even individuals have a positive duty to ensure that others do not discriminate against someone based on the person’s immutable characteristic. He mentions that if employees do not want to work with a fellow homosexual, then the employer has a duty to make them work rather than terminating the homosexual person from the job. By such positive duty, the hotel owner needs to take the risk of the possible financial loss by giving a room to the person. This is because the right to housing is one of the most essential aspects of living and it also serves the larger purpose of preventing social boycott. However, this does not look like a correct analogy. An employer can bind the employees by the contract of employment. But a hotel owner cannot do anything if other customers wish to boycott the hotel.
In these situations, a distinction needs to be made between someone who boycotts voluntarily and when someone boycotts due to public pressure. In the latter case, the State has a positive duty to ensure that it does not take place as already been held in the issue of Freedom of Speech and Expression in the case of Inedibility Creative Pvt. Ltd. vs Govt. of West Bengal by the Indian Supreme Court. As far as the former case is concerned, I believe it might not lead to any substantial financial loss. However, if the hotel owner incurs a substantial financial loss, then the State should compensate him. This is because the principle of non-discrimination recognizes that State also has a positive obligation that discrimination does not take place in society and it might require taking positive steps to ensure the same.
Conclusion
Equality has been defined as securing one’s dignity by academicians. However, it has proven to be ineffective when used as a standard by courts in any discrimination-related adjudication. Similarly, while social participation is used as a standard in affirmative action-related litigation, it fails to address private discrimination. In this article, I have argued that the proportionality standard ensures that there is a genuine and legitimate reason behind discrimination and it is not based upon prejudices. However, it is also to be acknowledged that the State has a major role in ensuring private discrimination does not take place. This is required when someone discriminates due to the fear of social backlash. This could be in the form of awareness campaigns and also granting compensation to individuals who are facing financial losses for abiding by the Anti-Discrimination principle.
[i] Thulasi K Raj, Private Discrimination, Public Service and the Constitution, Indian Law Review, Published on 6th July, 2021.
[ii] Deborah Hellman, When is Discrimination Wrong, Harvard University Press, 2011.
[iii] Laurie Ackermann, Human Dignity: Lodestar for Equality in South Africa, 2012.
[iv] Chris McConachie, Human Dignity, Unfair Discrimination and Guidance, Oxford Journal of Legal Studies, Vol 34, Issue 3, Autumn 2014.
[v] John Gardner, On the Ground of Her Sex (Sexuality), Oxford Journal of Legal Studies, Vol 18, Issue 1, Spring 1998.
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