New Meaning for Equality - Comments on Naz Foundation Case

In this article – ‘Reading Swaraj into Article 15: A New Deal for All Minorities’, Tarunabh Khaitan (Lecturer, Christ Church College, University of Oxford) highlights the counter-majoritarian role taken up by the Delhi High Court in the Naz Foundation case which decriminalizes homosexuality. Tarunabh suggests that the judgment goes beyond merely decriminalizing homosexuality and gives an innovative and progressive interpretation enabling Article 15 to come on its own from the shadow of Article 14. These innovations are :

1) Reading in of unspecified analogous grounds under Article 15;
2) Strict scrutiny of laws infringing Article 15;
3) Protection against discrimination not only from state ( vertical discrimination) but also by private bodies( horizontal protection)
4) Substantive protection to all vulnerable groups that includes protection from not only direct but also indirect discrimination.

He argues that the judgment is set to lead to an era of greater recognition of personal autonomy and freedom to all minorities whose individual members are vulnerable to discrimination owing to their membership in that particular group. The judgment is all the more impressive and progressive given the fact that such reinterpretation of Article 15 according protection to all minorities was ‘not strictly necessary’ to reach the result in this particular case.

He further argues argues that numerical strength, though one of the major determinants of vulnerability is not the sole determining factor to be recognized as a minority. A community may be vulnerable politically, socially or economically or on account of any other limiting factor. Any such factor can be debilitating on its own to trigger protection under Article 15 and need not be accompanied with any other vulnerability. The case also makes it clear that the ‘popular morality’ or the ‘public disapproval’ is no ground to justify any restriction on Fundamental Rights. Restrictions of the nature based on morality that may be permitted in the extreme cases of compelling state interest have to be prescribed by ‘constitutional morality’ and not public morality.

Interestingly, he dismisses any notion of permanent majority or minority. To quote him , "The Naz court has invoked the swaraj-driven spirit of the Constitution and crafted a remarkably progressive jurisprudence on antidiscrimination law. Article 15 is set to become one of the key constitutional guarantors of personal autonomy for vulnerable minorities....The Court has recognized that pluralist societies rarely have permanent majorities or minorities. The Constitution stands for the principle of minority protection, whoever they might happen to be."

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Love Jihad

In this EPW article, Charu Gupta (University of Delhi)  presents historical comparisons of concerns arising out of religions conversions and methods to control the same. There is a need for very careful perusal of precedents and patterns in this regard.

Earlier, the Kerala High Court had expressed its displeasure over conversions from inter-religious marriages. A comment on the same is at Kafila and LawAndOtherThings.

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Housing Discrimination

In this blog on TheLawandOtherThings, Tarunabh Khaitan (Lecturer, Christ Church College, University of Oxford) raises several Constitutional questions concerning the issue of discrimination that arises out of the Supreme Court decision in Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (2005) that allowed housing societies to sell and lease premises to only to persons of a particular community. 

Tarunabh points out that often the qualification prescribed by the housing societies are, for instance worded in terms of dietary preferences, that by its very nature tend to exclude persons of a particular religion. Such an approach may potentially be used to deny housing opportunities to targeted groups that have certain identified preferences / habits.

An article in the Frontline highlights on emergence of 'ghettos' in post-riot Gujarat that make the subjects of discrimination more vulnerable to systematic violence and discrimination.

The House on Gulmohar Avenue by Sameena Mishra: A documentary on the housing discrimination issue albeit from an identity perspective is available here. 

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Politics of Inclusion: Caste, Minority, and Representation in India (Book Review)

In her recent book- Politics of Inclusion: Caste, Minority, and Representation in India, Zoya Hasan has presented a strong case for revamping the affirmative action policies in India to include socially and economically backward classes that fall outside the majority fold. Admittedly, affirmative action in India is based on theory of reparation that aims to set right the centuries of historic injustice meted out to the Scheduled Castes and Scheduled Tribes. 

Relying on Sachar Committe Report , she has argued that there is no need for historic exclusion and discrimination against Muslims and Christians to become beyond repair before it can be set right. To quote her, "... focus on discrimination and disadvantage in official policy in India has been disproportionately on the past and not enough on the discrimination in relation to present disadvantage. The remedial goals that are required must include giving careful attention to current discrimination also.... However the real tasks are, first, to ensure that this important challenge of broad-basing affirmative action policies, so as to include in their ambit focus on groups facing disadvantage and deprivation in the present context, becomes compelling political issue; and second to initiate a reasonable debate on it" (@237) . 

Amongst other issues, there is an interesting analysis of electoral system in India, party politics, implications of reservation politics in electoral outcomes. A book review of her book is available here. 

On a similar note, EPW Editorial in its current issue discusses the issue of reservation for reservation for religious minorities.  Zoya Hasan's article on the same issue is published in Seminar is available here.

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