CONSULTATION ON

ANTIDISCRIMINATION LAWS

Organised by: The Alternative Law Forum, Bangalore

with The Law and Society Committee, National Law School of India University, Bangalore
Date: 22nd December, 2014
Venue: National Law School of India University, Bangalore

Supported by Astraea Foundation for Lesbian Justice

CONCEPT NOTE

Introduction
The landscape of discrimination law in the country is variegated, dispersed and lacks insight into
the intersecting and unifying nature of discrimination across recognised identity markers. The
Indian Constitution provides a guarantee against discrimination on a number of prohibited
grounds including race, caste, place of birth and sex, but the manner in which these have been
operationalized through legislation and policy measures leaves a lot to be desired. There is
currently limited research and advocacy on bringing together these multiple strands of
discrimination, particularly when it comes to using the framework of the law. This conference
seeks to bring together people from across disciplines to highlight gaps in the laws present
thinking on the experience of discrimination. We will then focus on integrating responses to the
question of discrimination and engage specifically with the idea of developing a single antidiscrimination law that speaks to the complexity of peoples experiences.
This one day consultation is organised into five sessions following a brief introductory session.

Introduction: Towards a Comprehensive Anti-Discrimination Law

9.45 - 10 am
Arvind Narrain will begin the conference with a brief presentation on the problems with
enforcement of anti- discrimination laws as well as how a new law could hope to fill these gaps.

Session One: The Architecture of Discrimination Law

10 - 11.30 am
We will start by interrogating the idea of discrimination law itself. What makes this area of law
unique? Can experiences of discrimination be isolated from other kinds of experiences in a way

that is comprehensible to the law? Tarunabh Khaitan will elucidate on the themes of the
consultation, as well as highlight his own work on identifying and organising legal responses to
different experiences of discrimination. We will also look at comparative work on the various
legal frameworks for discrimination law and attempt to map out this literature in a way that can
feed into in the subsequent panels.
The subsequent sessions will largely follow the framework set out in this session. Our
discussions will be centred on three main questions:

Who is entitled to the protection of discrimination laws?

Who can be legitimately required to shoulder the duties of discrimination laws?

What is the scope of that duty?

Session Two: Protected Grounds

11.45 - 1 pm
In the second session we examine the first of these questions in detail. Jayna Kothari will lead
us in a discussion on protected grounds and how the law can understand and appreciate the
flowing, intersecting and overlapping nature identities. We will discuss different groups, both
presently identified as protected and not, and their experiences of anti-discrimination laws. We
will focus on expanding and consolidating the list of protected grounds for the purpose of a more
evolved anti-discrimination law. A response to Jayna's presentation will be presented by Rupali
Samuel.
Session Three: Notes from the Field 1 - Narratives of Discrimination
1.45 - 3.30 pm
This session will engage with enthnographic work on the experience of discrimination, led by
Sumathi Murthy and Sunil Mohan. Narratives based on extensive field work in South India
will be presented by a series of field researchers. These narratives will inform our assessment of
present laws, as well as give important insight into the practical challenges faced by marginalised
persons in utilising the law as an instrument of empowerment. A response to Sumathi and Sunil's
presentation will be presented by Agrima Bhasin.

Session Four: Vertical and Horizontal Discrimination

3.45 - 5 pm:
In this session we will focus on the second question of the conference, Who can be legitimately
required to shoulder the duties of discrimination laws? Gautam Bhatia will lead a discussion
on expanding our present anti-discrimination legal framework to include horizontal as well as
vertical discrimination. This is an important leap as our present Constitutional framework is
popularly understood to cover only fundamental rights violations by the state and its agencies.
The practice, of discrimination, as we are aware, extends beyond the realm of the state. The
workplace and educational institutions have emerged as important sites for both community
empowerment as well as ensuring equal access to the means for a life of dignity. A third
particularly insidious form of horizontal discrimination is the system of exclusionary
covenants: contracts (predominantly for housing or tenancy) that prohibit the sale, lease or
transfer of property to members of a certain race, caste or class. We will focus on developing
legal responses to these practices. A response to Gautam's presentation will be presented by
Arun Thiruvengadam.
Session Five: Notes from the Field 2 - Drafting the HIV/AIDS Bill
5 - 6 pm
In the final session, Vivek Divan will discuss his experiences around the drafting of the
HIV/AIDS Bill in its original incarnation, with specific reference to the anti-discrimination
provisions.

Report on the Proceedings of the Consultation

Introduction: Towards a Comprehensive Anti-Discrimination Law

Arvind Narrain began by outlining the need for a discussion on anti-discrimination at the
present moment. The present moment in the LGBT movement, with the Supreme Court's Suresh
Kumar Koushal judgment recriminalizing homosexuality, along with the lacunae of legal
frameworks to address discrimination faced by the LGBT community in both the public and
private sector foregrounds the importance of a strong anti-discrimination framework. Section
377 is ultimately symbolic of a much larger fight, and the issue of discrimination must be read in
a much wider sense.
He went on to outline varied experiences of people from different parts of the country and
different walks of life; all of which essentially demonstrate how pervasive discrimination is in
our society. For instance, after the Jaipur bomb blast in 2008, an Infosys officer was retained by
Police for 8 days in special custody. He came back to find out that Infosys had terminated his
employment on the grounds that he didnt divulge facts about his prior employment. This
termination was held to be unfair after he challenged it in the labour tribunal. Another instance
was that of a visually impaired student who applied for a seat at the National Law School in
Bangalore and asked for reasonable accommodation for his visual accommodation. Despite the
fact that 3% reservation is provided under the Disability Act, the law school contended that it
didn't have to comply as it was not a public institution. Finally, he spoke of studies that prove
that if ones surname shows their caste, an upper caste Hindu is unlikely to employ a lower caste
Hindu.
The majoritarian notions that allow for such discrimination to take place were challenged most
forcefully by Ambedkar's arguments for cultivating constitutional morality. Arvind concluded by
highlighting the dual role of the law - first, to punish those who break the law; and second, to
play a transformative role in society.

Session One: The Architecture of Discrimination Law

Tarunabh Khaitan presented what he described as a highlight reel of discrimination law in
common law liberal democracies. While understanding that the situation in India is different, and
that enforcement is harder, the problem at the heart is similar enough to make a comparative
study useful.
He began by noting that Indian discrimination law is moribund, that it never took off, and that
Article 15 of the Constitution is underdeveloped. Existing statutory provisions such as the Civil
Rights Act were criminal and not civil and so were interpreted narrowly and not broadly. There
are some things India has got right which the US or UK havent, such as the multicultural
discourse on religion. The need then is to move forward but also preserve the intricacies of
religious tolerance that we value.
He organized the structure of discrimination law along three broad axes: First, asking the
question of who were the duty bearers. The idea here has progressed beyond holding only the
state liable in a range of jurisdictions, thus making it particularly baffling how with Indian
socialist and libertarian heritage we do not extend the duty to private persons and are
deregulating. The Second question is who is the duty owed to - what are the grounds of
discrimination. The characteristics that comprise anti discrimination law are contextual, based on
historical disadvantage, are normatively and morally irrelevant and make a difference to our
ability to live life properly. Some grounds like race are immutable, while others such as
citizenship, marriage or pregnancy are recognized as fundamental choices even though they are
otherwise mutable. The third question revolves around the scope of the duty. The focus has
expanded and shifted from looking at the action of the discriminator which tends to be hard to
prove, to the injury of the victim of discrimination.
With this structural framework in place, Tarunabh charted 5 different theatres across time and
space with reference to discrimination law. The first was the point at which discrimination law
was thought of as an ancient common law duty on public officials such as common carriers, such
as Leigh v. Cotton in 1701. The principle stood that if a profession was for the public good, the
official concerned could not turn anyone away, and if he did, he could be sued. This goes to the
heart of the state versus non-state actors debate. While the public-private divide is relevant to

discrimination law, the line is not well drawn as the public includes people who have entered the
public sphere, such as employers and merchants. The principle was absolute and universal, it
wasn't ground-based or contextual, while there were some exceptions such as for individuals
who exhibited rowdiness or bad character.
The next moment that Tarunabh highlighted was following the 1865 US Supreme Court
judgment of Dred Scott v. Sandford which stated that blacks, whether free or slaves, are not
citizens. The 13th amendment abolished slavery while the 14th gave black individuals citizen
status, and guaranteed equal protection of law. While the language of the law was very wide, the
US Supreme Court gave it a very narrow meaning, with the Slaughter House cases firmly
identifying the promise of the 14th amendment lying against only the state and dealing with race
as the only paradigm. Thus race becomes the index against which other discriminatory grounds
are tested. While the Civil Rights Act of 1875 outlawed discrimination in the private sector, it
was struck down as unconstitutional in 1883, taking the US almost a century to enact a similar
statute again. In the absence of statutes, the US Courts worked creatively with the common law,
such as the case of Shelly v. Kramer, where the court explicitly denied the enforcement of a
discriminatory rule.
The third "theatre" was that of India. The earliest antidiscrimination programme was in 1892,
with affirmative action being adopted by Princely States. Then there was the Caste Disabilities
Removal Act of 1850, which extended to caste as well as religion and continues to be good law,
dealing in Shelly v. Kramer way with the private sector. Ground based affirmative action is an
Indian innovation. It is fault neutral in that there is not interrogation as to wrongs, only the
extension of benefits. It largely seeks to change social dynamics without changing attitudes, is
only against state action, and largely based on caste, and sometimes on religion. Affirmative
action is pervasive to this day, and has possibly been the primary reason why India has never
developed a comprehensive anti-discriminatory framework.

He returned to the US by discussing the significance of the Civil Rights Act of 1964, enacted
following mounting pressure from the black community and then extended to gender. With
Griggs v. Du Piere Company, the idea of disparate adverse impact against a protected group
evolved as a legal injury. This idea of indirect discrimination has not been extended to
constitutional law in the US, instead remaining restricted to statutory law. The United Kingdom
borrowed this from the US, putting in place legislations dealing with race relations and gender,
dealing with both direct and indirect discrimination, along with an explicit definition which is
impact based.
Across many jurisdictions, the period since the 90s has witnessed a proliferation of the
protectorate: the grounds on which discrimination is protected have expanded greatly from race
and gender to encompass gender identity, pregnancy, sexuality and disability amongst others.
All these grounds satisfy the original two requirements: Historically created haves and have-nots,
and morally irrelevant choices that should not affect our lives. This proliferation mirrors identity
politics, the shift from the old left to the new left, and the politics of dignity and recognition. The
idea of dignity has been a mixed blessing in South Africa and Canada - discrimination law has
sometimes solely become concerned with recognition, on the question of whether or not a law is
offending you. The older idea of material concern and the redistributive aspect has been whittled
down especially in Canada where the Court explicitly said material concerns were irrelevant
where dignity is what was crucial. The backlash came with a 2008 case that caused the Canadian
Supreme Court to alter this position to state that while dignity would remain in the back of our
minds, material concerns are the primary consideration. Both Canada and South Africa have a
regime of antidiscrimination based on civil law, with damages paid only when malice can be
shown, it is not punitive but regulatory.
The discussion that followed allowed Tarunabh to further elaborate on the core themes of
discrimination law. As he noted in response to the question of discrimination vis-a-vis an
economic class, most people do a disservice to anti-discrimination law by not recognizing its
limits. It does not guarantee any substantive benefits to any person - to that extent it is clearly
distinct from equality law. Discrimination law does not have the tools and resources to deal with
poverty, for which what is required is a robust welfare state with social security measures. While
not disconnected, anti-discrimination law and equality are distinct. In response to a question on

the possible conceptual barriers to extending discrimination law to the private sphere, Tarunabh
responded that such an extension was certainly possible when it becomes a public concern. He
cited the example of the South Africa Act of 2000 which is very broad and has no limitation in
scope - however the Courts have largely limited it to the public sphere. He concluded his session
by noting that discrimination law must be capacious enough to respond to any harm regardless of
its character.

Session Two: Protected Grounds

Jayna Kothari began the session by noting the starting point for looking at protected grounds
was Article 15, which lists religion, race, caste, sex and place of birth. The question arises: Do
we need an exhaustive list of protected grounds or should it be open-ended? Have we in India
expanded Article 15?
The Article has been largely underused in India. We have focused on Article 14, but not on
Article 15 and anti-discrimination. There is a need to look at this. There has been some
movement to include pregnancy under Article 15. The Rajasthan High Court in 2003,
adjudicated a case involving a woman who was 6 months pregnant, applied as a teacher, was
qualified but was denied the job because of her pregnancy. She argued that her pregnancy did not
stop her from doing her job in any way. The High Court held that it was discrimination, and
pregnancy would be a ground under Article 15. In the UK, age has been recognised as a valid
ground; in India, we have examined it in the context of Article 14 but not 15. This was in the
2014 case of Union of India v Atul Shukla where the Indian Air Force had differential retirement
ages: one at 54 and the other at 55. The Court held that it was discriminatory. The fundamental
rights provisions considered were 14 and 16, while Article 15 was left out of discussion. The
exclusion of Article 15 from doctrinal development has probably been based on the fact that it
has had a non open ended list of categories.
The Naz Foundation decision did provide some hope that Article 15 could be expanded because
it indicated that there could be other grounds that could be considered. However, Suresh Kumar
Koushal has probably closed this window again. We have many examples of grounds that can be
included: for example the South African constitution which has an extensive list which is also
open-ended and not exhaustive. Constitutions or charters that are open-ended allow courts to
expand grounds of protection. If we are looking at the articulation of anti-discrimination laws, an
open ended list would be better.
She then moved to look at the question of intersectionality. Rights groups have discussed it in
theory, but it hasn't been developed in practice. The idea of intersectionality was first developed
by Kimberle Crenshaw when she was speaking about black women. She articulated it in terms of
streets, when you have an accident at the intersection of different streets - there is a need to look

at convergence. So if you are a Dalit and a woman, you aren't facing two distinct discriminations,
but rather a particular experience of discrimination as a Dalit woman. We havent had much
discussions on intersections yet. In terms of legislations, the Persons with Disabilities Act and
the Prevention of Atrocities Act deal with discrimination against certain categories. But how
does one go about dealing with discrimination on multiple grounds?
Gender has often been a common ground in this regard. She noted a case where a woman with
disability was facing sexual harassment. The harassment that she faced was particularly because
of her identity as a woman with disabilities, and not just because she was a woman; a nondisabled woman would not have faced the harassment she did. In terms of articulating
discrimination which brings different grounds together, an important legislation was the UK
Disabilities Act of 2010. It contains many different grounds of discrimination, but looks at
intersectionality of only two grounds at a time. It is easier when there are only two grounds, but
what about when there are more than two?
Intersectionality was developed to ensure individual protection not only in light of separate
grounds, but all

grounds taken together. The Canadian Human Rights Act addresses

intersectionality on any number of grounds. The challenge then becomes how to address this in
practice. Is the discrimination more in the case of intersectionality? Should the penalty be more?
For example, The Prevention of Children from Sexual Offences Act talks about sexual assault
and aggravated sexual assault. The latter is when the child has a disability, or when the attacker
is a person in authority such as a teacher etc. So how should the law address situations like this?
She next asked about how we might look at the implementation of intersectionality in practice. It
is useful to look at cases under relevant legislations. In India, the concept of reservation
addresses this to a certain extent with the system of service reservations which entails horizontal
and vertical quotas across SC, ST, OBC categories, bringing in the category of women to then
provide for inter-locking classifications. This is a minimal way in which intersectionality has
been addressed, but there has been no discussion with respect to discrimination in this regard. In
a Kerala High Court judgment of 1993, the facts pertained to non-allowance of women of a
certain age into the Sabrimalla temple. Women aged between 10 and 40 were not allowed to
climb the steps or enter the temple, since their active menstrual cycle might defile the temple
premises. The High Court did not deal with it as an issue of intersectionality, it looked at age and

sex separately. Because of this, the challenge failed on both grounds. It's evident that
intersectionality will fail if the grounds are looked at separately, therefore, there is a need to
move from looking at the grounds separately.
Sandra Friedman looks at this in the US and EU context, saying that courts may not be willing to
look at intersectionality because it opens a Pandoras box. In a US Federal Courts of Appeals
case, a black woman complained of discrimination at work where she was not considered for
promotion. There was an age aspect to this as well, but the court did not look at that. The
promotion criteria in question looked at black people, and women separately, but not the
intersection. The case failed at the district level, but the Appeals court held that recognition of
black women as a distinct sub group is the only way to rectify the discrimination. The fact that
there was no discrimination against black people and women separately was no defence in this
case. Thus, this is a fused identity and cannot be looked at separately.
Rupali Samuel responded to Jayna's paper by stressing the purpose of grounds in discrimination
law. She proposed that since 'grounds' only stood as a proxy for a collective experience of
subjugation, our chosen markers of identification must not be restricted to watertight
identities - even a lengthy list of conjoined and intersecting identities. The 'sex plus' approach of
American law, and the cap on multiple grounds in the UK statute both fail to speak to the
complexity and diversity of real experiences of discrimination on the ground. She stated that our
aim then should be to reorient our focus to capturing the experience of discrimination even in our
demarcation of 'grounds.' She referred to the Supreme Court's reading of 'sex' in Article 15 as
proscribing prejudicial acts based on stereotypical notions of gender in Anuj Garg v. Hotel
Association of India and NALSA v. Union of India as demonstrative of a move in this direction.
She also highlighted the use of a 'perceived as' clause in disability law, wherein a person can
invoke discrimination law for prejudicial behaviour based on her perceived membership in a
protected group, as another example of such a broad reading. She finally proposed the
elimination of the 'comparator test' which requires that any person invoking discrimination law
must prove inferior treatment as against another test group.

The discussion began with a question about the possibility of jeopardizing the predictability of
the law if we were to have more open grounds, and whether, if Article 15 could not expanded

be, would a separate legislation be appropriate. Jayna responded that she would argue for open
ended laws, whether through expanding the Article 15 grounds or through a new law. As far as
predictability was concerned, this was really more a question of how laws develop; for instance,
marriage as a ground did not exist twenty years ago. To ensure that the law is able to encompass
change, it is necessary that it be expansive. As far as the question of constitutional amendment is
concerned, it's clearly a difficult change so one way forward is to interpret Article 15
expansively. Otherwise we may want to push for a new broad legislation. We need to see how
laws in other countries have worked in practice, and also consider the fact that they often have
better institutional structures than we do.
An important question that arose was around the significance of accounting for perceived
identity over and above individuals who actually lay claim to the identity in question. As Jayna
pointed out, the idea of perceived disability has been used quite extensively; for instance, family
members with a child with disability are also discriminated against on grounds of disability.
Another example would be discrimination based on association with a person belonging to a
sexuality minority. The idea of perceived identity also has value as seen in how the Karnataka
Draft State Policy on Transgenders evolved from protecting transgender children in school to a
broader definition of gender non-conforming children. To make this policy further inclusive, the
shift should be from children aware of being gender non-conforming to children perceived as
being gender non-conforming.

Session Three: Notes from the Field 1 - Narratives of Discrimination

Sumathi Murthy presented from a paper by her and Sunil Mohan documenting their findings
from interviews with a range of activists, academics and advocates focusing on the question of
direct and indirect discrimination as it was experienced and perceived by individuals and
communities. The presentation was structured in the form of individual anecdotes highlighting
different understandings of discrimination.
She began with talking about how the non-implementation of the Fifth Schedule of the
Constitution of India including the amendments in Kerala is seen as direct discrimination by the
tribal activists there who were, at the time of the consultation, engaged in a standing protest in
Trivandrum in front of the secretariat. With the chief idea of tribal identity and rights connected
to the land, they also see the clubbing together of SC and ST issues as a kind of discrimination.
The issues faced when it comes to scheduled castes are often very different from those faced by
scheduled tribes; for example, untouchability is not a particularly rampant issue when it comes to
the latter. Another kind of discrimination is seen in the manner in which Kerala culture is forced
onto tribes by education or agriculture in the name of bringing them to mainstream society. As a
tribal woman they interviewed observed, the education that they received in schools was not
reflective of the lives they live - while school texts state that mothers work in the kitchen and
fathers in the office, tribal culture finds everyone going to work as farmers. A similar
observation was made by Dalit activists who felt that their cultural forms were not represented in
the education curriculum, instead being shunted aside for more dominant cultural forms.
An interview with a land rights activist brought forward an experience of discrimination based
on class - the activist in question studied in a corporation school where the first three years
mandated no uniform of any kind. In the third grade however, when uniforms were introduced,
parents who could not afford it were forced to discontinue their children's education. The activist
also described another kind of discrimination faced by migrant workers in Bangalore - they could
get a slum house only after staying in the city for ten years. As for getting a BPL ( Below
Poverty Line) card that could provide you with a range of health facilities, but to get the same
required a permanent address which was often impossible.

As Sumathi noted, these examples highlighted how community activists and members had a
particular understanding of direct and indirect discrimination from their practical experience
which would sometimes differ from a theoretical understanding of the same. We also need to go
beyond these definitions to understand the complex nature of multiple marginalizations.
Many individuals interviewed also pointed out that the face of oppression and oppressors has
changed. It is no more a monolithic structure of Brahmins against Dalits or men against women;
instead it is more complex and invisible to the extent that even gathering evidence of it becomes
extremely difficult. Different people referred to it as invisible discrimination, invisibile
humilation, and soft discrimination. One activist went back to the education system to highlight
how it promotes a certain understanding of gender roles - mother in the kitchen, father in the
office - in furthering patriarchal interests.
Discrimination faced by the Dalit community often takes on these more invisible forms, whether
the individual in question is actually or perceived to be Dalit. Persons who are dark in colour, or
those consume non-vegetarian food and are Hindu are assumed to be Dalit. Sumathi mentioned a
story about a Kannadiga professor who was dark complexioned. When his children who were
more fair skinned went looking for a house to rent, they were able to agree on an apartment and
paid the advance to the owner. However, the next time they went and took their father along, the
owners took one look at the man and refused to give over the house. Now this clearly due to the
dark complexion of the professor and the link made to caste, but since there was no specific
reason given for the refusal of the lease, it becomes difficult to use cases like this as evidence.
Another Dalit activist from Kerala shared a story about getting admission in a mainstream music
academy under the reservation quota. After committing some mistakes in class while practising
in front of the upper caste teacher, he found the teacher reacting by asking him if he was from the
reservation quota, and that's why he couldn't get it right. The activist described the deep
humiliation he felt as the entire class laughed at him, but also noted how he couldn't quite make a
claim under the Prevention of Atrocities Act since the statement made was not a direct reference
to his caste. The Prevention of Atrocities Act provides a list of atrocities against Dalits that are
comprehensive for the time of its enactment but it fails to capture modes of oppression which are
less visible and direct.

Sumathi concluded with discussing the need for recognizing multiple marginalizations through
narrating an incident of how a Dalit female to male transperson was stripped and paraded nude in
a Kolkata village. The individual was a daily wage worker who had a relationship with an upper
caste woman. After repeated attempts by the woman's family to separate them failed, they called
the transperson to their house and abused him physically and verbally, before the naked parade.
When the mother of the transperson went to complain in the police station, they refused to file a
complaint.
Agrima Bhasin's response to Sumathi and Sunil's paper focused on three broad themes: First,
Soft/Subtle/Invisible discrimination and the changing manifestations/processes of discrimination
resulting in multiple marginalisation; Second, the costs of inaction or the implications of such
marginalisation for individuals and Third, the reproduction of discrimination in law or when law
mirrors discrimination. Besides the paper, she drew on her response from their book titled
Towards Gender Inclusivity as well as the India Exclusion Report 2013-14.
She supplemented their examples of discrimination relating to education and housing with
instances from the exclusion report. With respect to education, the Report foregrounds the
neglect of indigenous knowledge systems, the unique history and oral traditions of indigenous
communities as well as their childrens intimate knowledge of the environment and ability to
think in riddles. In the case of housing exclusion, the Report finds that a vast majority of housing
shortages affect economically weaker families and that within low-income slum settlements,
preference is given to male tenants.
Towards Gender Inclusivity, captures well the difficulty in law of articulating the manifestations
of discrimination that were discussed - there, the authors urge us to move beyond the dominant
understanding of violence as legal injustice to understanding the practical, real experiences of
discrimination in different situations and contexts. She noted that it would serve us well to ask in
what ways multiple marginalizations affect people and increase their vulnerability, and how this
knowledge could help expand Article 15 and strengthen the case for an Anti-Discrimination law.
In speaking of the myriad implications of such marginalization for individuals, the starkest is
death in the form of murders and suicides, beyond which there is also serious mental violence or

health consequences besides more specific harms in the case of particular exclusions relating to
education, housing, or access to legal justice. Examining the consequences then gives us a sense
of the cost of inaction when it comes to such marginalizations.
She joined Sumathi and Sunil in stating that when the law itself is a cause of violence and is
violent to poor and marginalized communities, we need to rethink ways of doing legal justice.
The idea is not to abandon the law in the struggle for justice but to recognize and grasp the ways
in which laws oppress and use this knowledge to reimagine and alter how we think about and
practice law. Law is not the only solution but an important crutch in this struggle.
The discussion that followed began with asking whether anti-discrimination law could
effectively address the range of issues that had been brought up in the session. Sumathi answered
that it probably couldn't, that law was just one facet of what we need to address these issues, that
various social programs and campaigns need to be organized. However, the mere fact that such
instances of marginalization could be brought up in a courtroom were such laws to exist would
be a big advantage of having such a law.
Another point that arose in discussion was that of the efficacy of special laws such as the
Domestic Violence Act or the Prevention of Atrocities Act. Authorities often refuse to invoke
these laws, prompting a question about whether general criminal laws can be used instead. It was
felt that even though it was difficult to register cases under special acts, it was still crucial that
we focus on their implementation as opposed to resort to the general criminal law because it was
the former that truly addressed the question of intersectionality and multiple marginalization. If
one maintained that Dalits should not use the Prevention of Atrocities Act simply because it is so
difficult to register a case under it and use the IPC instead, what would be the point of having
such Acts in the first place?
It was observed that a civil law regime would be the way forward for an anti-discrimination law
particularly considering how the burden of proof and enforcement of civil law is easier than
criminal law. At the same time, one would have to account for the fact that civil cases have lesser
forums for filing cases (the district court) as opposed to criminal cases.
The discussion concluded with an affirmation of the importance of laws that specifically looked
at discrimination against certain identities as opposed to regular laws such as the IPC. There is an

aspirational value to the former, the State is trying to attach a value/ message to specific antidiscriminatory laws which a general legal regime cannot hope to address.

Session Four: Vertical and Horizontal Discrimination

Gautam Bhatia began this session by differentiating between the scope of Vertical and
Horizontal discrimination with specific reference to the Constitution of India. Vertical
discrimination involves discrimination by the state or its entities while horizontal discrimination
is the one undertaken by private entities. Delineating the position of law in other Constitutions,
he posited an argument for a broad reading of Article 15 so as to extend it to economic
transactions.
The famous American case of Shelly v Kraemer is an instance of how privity of contract was
maintained even in a clear case of exclusion. At the same time, the case shows that courts will
not go into the validity of such restrictive and discriminatory covenants but will refuse to enforce
them so as not to uphold any unconstitutionality. The court did so by relying on the equal
protection clause in 14th amendment of the US Constitution by reasoning that the judiciary could
not be responsible for upholding any unconstitutionality.
Turning to Canada, he pointed out the case of In Re Drummond Wren where the court looked to
public policy to declare a discriminatory covenant as void. The same line of thought was carried
forward in the case of Noble v Alley where the covenant that discriminated on the basis of race
and blood was held void for uncertainty. However, uncertainty still remains over the scope and
usage of the term public policy. Lastly, the South African Constitutional court decision in The
Curators v University of Kwa-Zulu Natal, which is with regard to the interpretation of a bequest.
The court invoked the German idea of objective order of values and stated that every private
action must be guided by broad values of the constitution and must be in conformity with them.
Further, public policy was also used to discard the discriminatory measure. With reference to
foreign jurisdictions, Gautam concluded that it was difficult to discern a common rule of law and
courts in different jurisdictions have found different ways to deal with the same problem.
Coming to India, his argument was that Article 15(2) of the Constitution must be construed
broadly so as to provide an expanded scope of Vertical discrimination. The Supreme Court
decision in Zoroastrian Cooperative v. District Registrar came under heavy criticism as the
court not only upheld the validity of a covenant that discriminated against non-Parsis but also
asked for State enforcement of the same. This is a decision whose reasoning is rather difficult to

locate. It couldnt have been due to the existence of the right to association or public policy as
these grounds arent sound in law for such a case. This is because the right under Article 19(1)(c)
cannot be equated with the right of contractual freedom. The restrictions on the two are of
different nature and they cant be held as co-terminus. To the extent that the case is based on
principles of contract law, the two major bases for the decision public policy and freedom of
association are unambiguously incorrect. In his opinion, the strongest argument in favour of the
covenant in the case was one grounded in Article 29, and one that the Court incidentally alludes
to at the very end of its judgment. On that understanding, the decision should be restricted to
cases involving the rights of minorities only.
An important but lesser known case is the Supreme Court decision in IMA v Union of India. The
issue in this case was whether a private non-minority institution which admitted students only on
the basis of an entrance test was violative of Article 15(2). The word shop in Article 15(2)
was given an expansive interpretation by relying on the Constituent Assembly Debates. It was
said that shops include any place where a service is provided for consideration. Gautam
concluded by saying that the decision in IMA must be taken to its logical conclusion and an
explicit code of rights must be laid down so as to provide remedies in case of horizontal
discrimination.
In responding to Gautam's paper, Arun Thiruvengadam began by distinguishing our
constitutional scheme from that of USA, Canada and South Africa by pointing out the difference
in their stage of development and the difference in the number of constitutional cases in those
nations. This has the consequence of a dearth of discussion on constitutional matters. He was of
the view that apart from interpreting the Constitution, we should also look at historical and other
textual arguments to support Gautams stand. Placing reliance merely on the Constituent
Assembly debates for every issue was dangerous as they have too many wide ranging views
from individual members who cant be described as the true reflection of the majority or correct
view.
The Constitution should not only be understood as something that restricts state action, he
maintained; it also empowers the state in various facets and this empowerment is necessary to
keep the state running. He advocated for a larger bench to come and rescue the Constitutional
dilemma faced by the country in the matter of Horizontal application of fundamental rights.

Further, he placed a great emphasis on what we as a community can do to uphold and preserve
rights while being mindful of the limitations at the same time.
The discussion that followed began with a focus on the transformative jurisprudence witnessed
in India in its short Constitutional history. The importance of looking at anti-models along with
models was mentioned. It was necessary to do so in order to understand the problem and strike at
its root. It is important to realize that unlike the Supreme Court of the United States, our
Supreme Court is not one court but many different courts do to the system of sitting in benches.
Hence, we have to be watchful of the biases that creep in the mind of the judges while deciding
cases. The session came to an end with the consensus that a detailed Civil Rights Act is needed
as the present model is not equipped to handle all cases of horizontal discrimination.

Session Five: Notes from the Field 2 - Drafting the HIV/AIDS Bill
The final session saw Vivek Divan talking about his experiences during the drafting of the
HIV/AIDS bill in 2007. He mentioned that the initiative was taken on the perusal of the then
Law Minister. It was perceived that people were interested in such a law and they made sure that
they consulted all the interested parties and took global practices into account in the process of
drafting. An extensive consultation process was undertaken and reliance was placed on similar
laws in Australia, New Zealand and the United States, amongst others. A particularly strong
model to draw upon from was the Promotion of Equality and Prevention of Unfair
Discrimination Act of South Africa. Vivek lamented the fact that nothing has materialised in the
past 7 years with the Bill having been put into cold storage, coming into limelight once every
year on World AIDS day.
He proceeded to discuss some of the crucial features of the Bill, starting with its expansive
definition of discrimination. Clause 4 of the bill included actual as well as perceived
discrimination in both public and private sector. However, he bemoaned the fact that the
government has watered down the definition substantially in the version of the bill that is
actually under discussion. He also pointed out the specific instances where the bill borrowed
heavily from the African law. The bill deals in detail with unfair treatment by providing a
detailed list of such actions in the schedules annexed to the bill. As an illustration, he talked
about the fact that it is prohibited to travel by railway if you are HIV+. Such instances of unfair
treatment were supposed to be remedied by the introduction of the bill.
Significantly, the National Health Bill of 2009 borrows heavily from the HIV/AIDS bill which
points towards the perceived efficacy of the bill. He concluded by pointing out the plaintiff
friendly provisions for burden of proof and also the fact that the bill has deviated from a criminal
approach to focus on providing remedies instead of punishing the offenders.
In the discussion that followed, concerns were over taking inspiration from South Africa due to
the underdeveloped South African jurisprudence in this respect. The UK Equality Act was
suggested as a better model, particularly in the manner in which it explicitly deals with direct and
indirect discrimination. Another concern raised was how, due to the technical nature of the
exercise of drafting, community voices are not heard and the application of the bill to people

who will actually be affected is not taken into account. A model example of extensive
consultation resulting in a well drafted legislation was the Right to Information Act. Vivek
pointed out that while consultation on a large scale is extremely difficult with a bill of this
nature, sufficient consultation was undertaken in the Bill at question. All the interested parties
were taken into account and even doctors who were against this bill were allowed to air their
views.

About the Participants

Agrima Bhasin is an alumna of Lady Shri Ram College, Delhi University, with a Bachelor's
degree in Journalism. She graduated in 2012 from Oxford University, where she studied Social
Anthropology, with a special focus on anthropology of development and policy. She has written
on human rights issues, especially caste, gender and stigmatised occupations, food insecurity,
exclusion and education and extrajudicial killings and justice. Agrima regularly conducts
participatory dialogues around the idea of inequality and dignity with school and college students
and currently works as a Senior Researcher with the Centre for Equity Studies, New Delhi.
Arun Thiruvengadam obtained his formal legal education from the National Law School,
Bangalore (B.A., LL.B (Hons.), 1995; LL.M, 2001) and New York University School of Law
(LL.M, 2002, J.S.D., 2007). After completing his undergraduate education in 1995, he served as
a law clerk to Chief Justice A.M. Ahmadi at the Supreme Court of India for eighteen months, till
March 1997. Between 1997 and 1999, he practiced in the fields of administrative, constitutional
and commercial law before the High Court of Delhi and the Supreme Court of India. He has been
a Research and Teaching Fellow at the National Law School (1999-2001), and at the Global
Public

Service

Law

Project

at

NYU

School

of

Law

(2003-05).

He joined National University of Singapore in May 2005 as a Visiting Fellow, and was
appointed an Assistant Professor in January 2007. He has taught in a visiting capacity at the
National University of Juridical Sciences, Kolkata, India (Visiting Professor, 2007, 2013), the
University of Toronto Faculty of Law, Canada (Distinguished Visitor, 2007) and the University
of Trento Faculty of Law, Italy (Visiting Professor, 2013).
Arvind Narrain is a founder member of the Alternative Law Forum (ALF). Arvind received his
Bachelor's degree in law from the National Law School of India University (NLSIU) in
Bangalore followed by a Masters in the University of Warwick on a Chevening scholarship. He
was actively involved in working on child rights and juvenile justice at the NLSIU Centre for the
Child and the Law. He also taught courses at the NLSIU on human rights law and ideology,
ethnic conflict, law, poverty and development. Arvind now works full time at ALF dividing his
time between litigation on the criminal side and research and advocacy on sexuality and minority
related issues.

Gautam Bhatia graduated from the National Law School of India University, Bangalore in
2011, where he is currently teaching a seminar course on Free Speech. He previously spent two
years at Oxford as a Rhodes Scholar studying legal philosophy and human rights followed by a
year at Yale Law School studying constitutional law. He writes a regular blog on the Indian
constitution, aimed at both specialists and lay readers.
Jayna Kothari is one of the founder members of CLPR. She graduated from University Law
College with a B.A.L LL.B degree in 1999. She also completed her post-graduate studies as a
Bachelor in Civil Law at the University of Oxford. She has also taught in University Law
College, Bangalore as well as National Law School of India University, Bangalore. In 2008,
Jayna was awarded the Wrangler D.C. Pavate Fellowship in the University of Cambridge. She is
also a recipient of the National Child Rights Fellowship, 2010 awarded by Child Rights and You
(CRY). Having practiced previouly in the Supreme Court of India in the Office of Ms. Indira
Jaising, Jayna is now a partner in Ashira Law, a law firm in Bangalore and is practicing in the
High Court of Karnataka. Her articles and other writings have been published in academic and
non-academic works. Her focus areas of interest and expertise include disability law,
constitutional law, human rights and intellectual property law.

Rupali Francesca Samuel is a final year student presently pursuing a BA.LL.B (Hons) from
Nalsar University of Law, Hyderabad. She has served as Editor-in-Chief of Nalsar Student Law
Review, Nalsar's flagship publication. She presently serves as an analyst at SpicyIP.com and as a
research fellow at the Alternative Law Forum. She is keenly interested in interdisciplinary and
critical approaches to law and social justice.

Sunil Mohan was Kerala State Womens team Cricket Captain. Came to Bangalore completed
his Electrical Diploma and started working in Sangama an NGO working for the rights of sexual
minorities. Fed up with the kind of work, he started working independently his research work
through community consultation process under the fellowship of Alternative Law Forum and
published a report called Towards Gender Inclusivity. He has worked on Oral history
documentation of LGBTI people across south India with the fellowship of CCDS Open Space
Pune. Sunil identifies as a gender queer person.

Sumathi Murthy a student of music learning music from past 27 years. Sumathi started working
with women, contract workers union and marginalized genders and sexualities from 1999 till
now. Sumathi composes music and also has done work on sociological understanding of music
and gender and written a play on the Raga Kalyani called Sanchari. Sumathi started working
with Sunil from 2006 and has continued even now for all his research work while also working
her own works. Sumathi identifies as a queer person.

Tarun Khaitan is an Associate Professor and the Hackney Fellow in Law at Wadham College.
He completed his undergraduate studies (BA LLB Hons) at the National Law School
(Bangalore) between 1999-2004. He then came to Oxford as a Rhodes Scholar and completed his
postgraduate studies (BCL with distinction, MPhil with distinction, DPhil) at Exeter College.
Before joining Wadham, he was the Penningtons Student in Law at Christ Church.

Vivek Divan works on the intersections of law, health and sexuality with the Health, Equity &
Law Project. From 2012-2014 he was the Policy Specialist on Key Populations and Access to
Justice at UNDPs HIV, Health and Development Group in New York, USA, with a focus on
providing

advisory

and

technical

support

on

law

and

human

rights

in

the context of key populations affected by HIV. He is a lawyer from Mumbai, India and has
worked extensively on issues of HIV, access to justice, LGBT people, law and human rights in
India and globally. As Coordinator of Lawyers Collective HIV/AIDS Unit in India (2000-2007)
he oversaw and was involved in the legal aid, advocacy, research, capacity-building and legal
literacy work of the Unit. In that time he was part of the team that drafted legislation on
HIV/AIDS for India and strategised campaigns and lobbying on law and human rights issues
related to sex work and treatment access. He was centrally involved in the public interest
litigation related to Section 377 of the Indian Penal Code, Indias anti-sodomy law, including
legal research and strategy and extensive community mobilisation around the case. He served on
the Secretariat for the Global Commission on HIV and the Law and as a member of its Technical
Advisory Group (2010-12). He also served on the International Advisory Board of the

International

Gay

&

Lesbian

Human

Rights

Commission

(2000-2012). Vivek received his Bachelor of Arts and Bachelor of Law from National Law
School of India University in Bangalore, India and his Masters in Law from Cornell University
in the US.