In relation to CERD, Ukraine’s claim was that Russia had systematically discriminated against Crimean Tatar and ethnic Ukrainian communities in Crimea, in particular by: supressing their freedom of expression and cultural identity, perpetrating a campaign of disappearances, torture, murders, harassment etc, failing to investigate such violations and by using laws (viz. citizenship laws) and law enforcement (searches, investigations and prosecution) to discriminate against them.

All but one claim under CERD failed for the reason that the majority did not find that Ukraine had established that the treatment complained of was ‘based on’ the grounds of racial discrimination mentioned in article 1(1) of CERD (viz. race, colour, descent, or national or ethnic origin); and in particular that the treatment of Crimean Tatars and ethnic Ukrainians was based on their ethnic origin rather than their political opposition to Russia.

The last time the Court struggled with the grounds of racial discrimination under CERD was in Qatar v United Arab Emirates concerning the application of the International Convention on the Elimination of All Forms of Racial Discrimination, where it reduced grounds listed in article 1(1) to those inherent at birth so as to exclude nationality as a ground from the scope of CERD.

This time around, the majority reduced grounds listed in article 1(1) and in particular the ground of ethnic origin to exclude political opinion. With this, by a majority of 10-5, the Court found that any discriminatory treatment or effect (except for discrimination in provision of school education in Ukrainian language) suffered by Crimean Tatars and ethnic Ukrainians was thus a result of their political and ideological positions and not related to prohibited grounds under CERD.

This post does two things. First, it explores why the majority’s understanding of ethnic origin is flawed: because it failed to appreciate the link between political opinion and ethnic origin. Second, it explores how the majority is able to overcome its restrictive reading of grounds of racial discrimination in the case of language: precisely because it was able to appreciate the link between language and ethnic origin. This inconsistency reveals the Court’s continued lack of a clear conceptual understanding of what both ethnic origin, and more broadly, racial grounds are. Racial grounds in article 1(1) of CERD are not objective or physical characteristics which are inherent at birth. They are categories which are defined in reference to the relevant social, economic cultural and indeed political context in which they exist. They are ‘markers of discrimination’ (Thornberry 2016, pp. 126, 134–137) which exists within these specific contexts rather than global categories which can be given objective and fixed meaning aside of the context.

Ethnic Origin

Both Parties and the Court agreed that Crimean Tatars and ethnic Ukrainians constitute ethnic groups protected under CERD (Judgment [200]). But the question before the Court was whether they had been discriminated ‘based on’ their ethnic origin.

In this context, the Court recalled its finding in Qatar v UAE where it had held that ‘references to ‘origin’ denote, respectively, a person’s bond to a national or ethnic group at birth’, as do ‘the other elements of the definition of racial discrimination, . . . namely race, colour and descent’ (Preliminary Objections, Judgment [81]). Thus, ethnic origin, according to the majority was what was present at birth such that ‘the political identity or the political position of a person or a group is not a relevant factor for the determination of their “ethnic origin” within the meaning of Article 1, paragraph 1, of CERD’ (Judgment [200]).

The majority relayed evidence from the Office of the High Commissioner for Human Rights (OHCHR) as well as intergovernmental reports which showed that ‘several targeted persons were pro-Ukrainian activists’ and that ‘the victims were attacked for their political and ideological positions, in particular for their opposition to the March 2014 referendum held in Crimea and their support for the Ukrainian Government’ (Judgment [214]). To the majority, the evidence indicated that the victims were targeted for their political opinions and not their ethnic origin (Judgment [214]). This defeated the claim of direct discrimination.

For the claim of indirect discrimination, the majority relied on the fact that persons of Russian and Central Asian origin were also subjected to violence (Judgment [216]) and that Ukraine lacked access to Crimea and hence had limited statistical evidence to prove that Crimean Tartars and ethnic Ukrainians ‘were subjected to acts of physical violence based on their ethnic origin’ (Judgment [217]). The majority concluded that: ‘any disparate adverse effect on the rights of Crimean Tatars and ethnic Ukrainians can be explained by their political opposition to the conduct of the Russian Federation in Crimea and not by considerations relating to the prohibited grounds under CERD’ (Judgment [217]).

The problem with this analysis lies in the Court’s misunderstanding of ethnic origin as dissociated from political opinion. Ukraine, relying on Sandra Fredman’s expert report, had argued that ‘ethnic minorities have political concerns which are closely bound up with their ethnic identity’ (Second expert report by Professor Sandra Fredman, 21 April 2022 [50]). Further, as President Donoghue stated in her separate opinion: ‘The distinct ethnic identity of a particular group goes beyond shared physical characteristics and can be forged or strengthened by a variety of forces, including the way in which that group is characterized and treated by governmental authorities’ (President Donoghue, separate opinion [18]). In fact, to say that political opinion ‘is not a relevant factor for the determination’ of ethnicity, is to assume that ethnicity is objective and fixed at birth, an assumption President Donoghue thought was an ‘oversimplification’ (President Donoghue, separate opinion [18]). But this conceptual oversimplification fed into the Court’s expectation for smoking gun evidence for racial discrimination—as if only explicit references to some objective ethnic characteristics could show that Crimean Tatars and ethnic Ukrainians were targeted ‘based on’ their ethnic origin (Judgment [250]).

This oversimplification then is a conceptual error. It fails to appreciate ethnicity as complex and determined in reference to a ‘long shared history’ of ‘cultural traditions’ which can be determined in reference not only to race or religion but, as the UK House of Lords in Mandla v Lee recognised, by a host of other factors including descent, region, language, literature, and importantly, the characteristic of being a minority within a society (Mandla v Lee [1983] 1 All ER 1062, 1063; Thornberry 2016, p. 125). Minority status in particular cannot be extricated from political marginalisation (Young 1990, pp. 53-58). Thus, if Crimean Tatars and ethnic Ukrainians in Crimea are understood as ethnic minorities they have to be understood as also defined by their political marginalisation and indeed opposition to the Russian Federation.

Instead, the majority stuck with its narrow view of racial grounds as ‘inherent at birth’. The result is that it has solidified the mistaken view of racial grounds as having biological, scientific or objective truth; a view that not only has ‘largely passed into history’ (Thornberry 2016, p. 18), but also runs counter to CERD’s object and purpose of eliminating all forms of racial discrimination.

Language

The only claim that succeeded under CERD by a majority of 13-2 was in respect of changes to school education in the Ukrainian language in Crimea. The majority agreed that the reduction of school education in Ukrainian language constituted a violation of the prohibition of racial discrimination under Article 2(1)(a) and the right to education under Article 5(e)(v) of CERD. The majority was able to reach this conclusion because it was able to overcome its narrow view of racial grounds in article 1(1). This was primarily because, instead of the ground of ethnic origin, this claim was seen as pertaining to language. Language, according to the majority, ‘is often an essential social bond among the members of an ethnic group (Judgment [355]). It thus concluded that reduction of school education in ‘a minority language’ (Ukrainian) constituted racial discrimination on the basis of ethnic origin (Judgment [354]–[357]).

The reliance on minority status in the context of language is in sharp contrast with the ignorance of minority status (and its consequent political marginalisation) above when the Court considered the ethnicity of Crimean Tatars and ethnic Ukrainians as detached from their political opinion. Nothing explains this inconsistent understanding of the same ground—ethnic origin—in article 1(1) of CERD.

The link between language and ethnic origin however leaves open possibilities for a broader understanding of racial grounds under article 1(1). It especially leaves open the possibility of moving away from the currently dominant, but mistaken, view of the ICJ that racial grounds are about characteristics inherent at birth.

The General Comment’s most significant contribution is its elucidation of what is meant by substantive equality for persons with disabilities. The Committee has adopted Sandra Fredman’s four dimensional model of transformative equality as the framework for ‘inclusive equality’ which includes: ‘(a) a fair redistributive dimension to address socio-economic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to  recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity.’ [11]

The suggestion of a clearer definition of intersectional discrimination has also been adopted in line with the OHRH proposal to define intersectional discrimination as discrimination in any form ‘on the basis of disability, combined with’ other grounds [19], instead of the definition proposed at paragraph 20(e) of the Draft General Comment which defined intersectional discrimination as taking place ‘on several prohibited grounds or statuses’. Our reason for suggesting the operative word ‘combined’ was to convey that the nature of intersectional discrimination based on two or more grounds is always synergistic and inseparable [pp. 11-12, OHRH Submission]. The Committee has adopted this explanation [19], which is a significant advance from its position in the Draft General Comment.

Finally, the OHRH Report also recommended a clarification in respect of reasonable accommodation such that the reasonableness of a measure is considered effective from the perspective of persons with disabilities [p. 15, OHRH Submission]. The Committee has provided an unequivocal statement in this regard stating that ‘An accommodation is reasonable, therefore, if it achieves the purpose (or purposes) for which it is being made and is tailored to meet the requirements of the person with a disability’ [25(a)].

General Comment No. 6 which is 19 pages long is a comprehensive exposition on equality and non-discrimination in the field of human rights law. Its scope is extensive in that it not only addresses issues of equality for persons with disabilities under the CRPD, but also develops the normative content of concepts like substantive equality, direct and indirect discrimination, intersectional discrimination, and reasonable accommodation as applicable to human rights law in general. The General Comment marks a high point in the evolution of international law jurisprudence on equality and non-discrimination and will be influential for decades to come.

The CJEU in its judgement delivered on 18 October 2017 in the case of Ypourgos Esoterikon v Maria-Elleni Kalliri answered this question in the affirmative. It found that the Greek law, which stipulated a height requirement of 1.70 meters to enter into a competition for selection into the police service, constituted indirect discrimination against women. Under Article 2 of the Directive, indirect discrimination results from an apparently neutral provision, criterion or practice which puts persons of one sex at a particular disadvantage as compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. The Court referred to the evidence before the referring court that a far greater number of women than men were affected by the height requirement, putting women at a particular disadvantage as compared to men. Given the nature of the preliminary ruling, the Court agreed that although it was ultimately for the national court to determine if such indirect discrimination could actually be justified, it offered guidance for making that decision. In particular, the Court found that while the effective functioning of the police force was a legitimate aim to be pursued, the minimum height requirement had little to do with this aim and thus was not a suitable means for achieving the aim and went beyond what was necessary. The crux of the Court’s reasoning lies in paragraphs 38 and 39 where the Court found that neither could all of the police forces’ functions be said to use physical force nor can such physical force be attributed to a certain physical aptitude associated with a requirement like the present one. Further the Court suggested at paragraph 42 that if physical attributes were a requirement of the police forces then they needed to be tested through more surefire tests for physical aptitude which were also ‘less disadvantageous to women.’

Two things are notable. First, the Court had previously found for direct sex discrimination where women were considered unsuitable for handling firearms in the police services and the army. With the decision in Kalliri, the Court extends its reasoning to indirect cases where neutral factors like height disadvantage women from participating in the national security forces. Second, the Court fortifies the trend of raising the bar for justifications to pass the test of proportionality, thus developing its sex discrimination jurisprudence beyond its traditional equal pay and social security cases and into the field of equal opportunity and access to employment. The Court appears to suggest in Kalliri that there is something inherently problematic for neutral testing requirements like height, which adversely affect women. It thus moves away from its initial view on indirect sex discrimination as capable of being justified when based on factors unrelated to sex (Case 170/84 Bilka-Kaufhaus v Webers Von Hartz (1986), brought under Article 119 TFEU) by demanding justifications to not only be unrelated to sex but also to be narrowly tailored in terms of achieving legitimate aims through the most appropriate and necessary means. In this way, Kalliri demands a greater ‘fit’ between employment selection criteria and the aim for which they are instituted, thus tightening the proportionality test for sustaining indirect sex discrimination.

The Court’s reasoning on direct discrimination is located in four terse paragraphs [29]-[32]. The Court first noted that the rule covered any manifestation of political, philosophical or religious beliefs without distinction and thus treated all workers in the same undifferentiated way by requiring them to dress neutrally [30]. It then noted that there was no evidence to conclude that the rule was applied differently to Ms Achbita as compared to other employees [31]. Based on this, it concluded that the rule did not give rise to any difference in treatment to constitute direct discrimination based on religion or belief under Article 2(2)(a) of the Directive [32].

The flaw in this reasoning appears in the Court’s view of direct discrimination as one which could not be based on religion when a rule applied to all. Such a requirement is absent from the plain text of Article 2(2)(a) which provides that ‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1’. The requirements for direct discrimination from this definition are clear – (i) that the person be treated less favourably than another; (ii) on the grounds of religion or belief, disability, age or sexual orientation. In relation to the second requirement, the Court misses that a rule which explicitly mentions prohibition of manifestation of religious beliefs is in fact one which is directly based on religion even if it applies equally to all religions.

The CJEU had previously applied this understanding of direct discrimination in CHEZ, where it found that a practice which applied to an entire district was still based on ethnic origin when ‘introduced and/or maintained for reasons relating to the ethnic origin’ CHEZ [91]. A prohibition on religious dressing is prima facie one introduced for reasons relating to religion, including reasons of excluding religion from the workplace. The formal rule in Achbita was in fact adopted by the employer after Ms Achbita had declared her intention to wear an Islamic headscarf [20]. The Court in Achbita then ignores its own understanding of direct discrimination which relates not to the lack of uniformity in treatment but to the difference in treatment being based on reasons relating to prohibited grounds. Furthermore, the Court also ignored that Achbita was treated less favourably than other employees who did not wear a headscarf or other religious insignia because it was not part of their religious identity in the same way as a female Muslim. Herein lies the crux of the referral on direct discrimination which explicitly referred to a female Muslim—one for whom religious, cultural and gender identities are co-constituted such that the headscarf is not just a manifestation of a religious belief which can be thought of as separate from the ‘neutral’ identity of a Muslim woman without a headscarf; but that which centrally constitutes Muslim women’s identity, in the same way as Sikh men wear turbans and Jewish men wear kippot. In that sense, every other person whose religious identity conformed to the employer’s preferred ‘neutral’ image of an employee – Muslim women who chose not to wear headscarves, Catholics who did not wear crosses, Sikhs without kara or turban etc. – was the appropriate comparator for understanding the less favourable treatment suffered by Achbita.

Ultimately what the Court lost sight of in focussing exclusively on the uniform application of the rule was the substantive meaning of ‘less favourable treatment’ under Article 2(2)(a) of the Directive. The Court – especially under the Race Directive in cases like Feryn and CHEZ – has interpreted the harm or less favourable treatment in direct discrimination to cover stereotypes, stigma and prejudices. In equating the effect of the ban on Muslim women wearing headscarves with others forbidden from displaying their political, philosophical and religious beliefs, the Court wilfully ignores the centrality of headscarves for Muslim women and thus the resulting loss of dignity in the Hobson’s choice of either exiting employment or abandoning the headscarf in the employment context.

The formidable panel of judges included Lord Phillips of Worth Matravers KG PC, former President of the UK Supreme Court, Professor Timothy Endicott, Dean of the Oxford Law Faculty, Ms Helen Mountfield QC of Matrix Chambers, and Mr Ian Gatt QC, Head of the Advocacy Group at Herbert Smith Freehills. After a fierce final round, the moot was won by the team of Conor Kennedy and Stuart Sanders of Trinity College. This year’s Championship problem question examined tort law and civil justice issues relating to damages for disabled claimants. The event was generously supported by Herbert Smith Freehills, in association with their disability network, Ability which seeks to reflect and represent the diversity in people’s experiences of disabilities.

The moot was followed by a discussion on ‘Building on the 2012 Paralympic Legacy: Social Attitudes, Equality Law and Participation in Public Life’ which was chaired by Lord Macdonald QC. Mr Stephen Frost, the former Head of Diversity and Inclusion for the London Organising Committee of the Olympic and Paralympic Games, spoke of the historic efforts in co-jointly organising the Olympics and Paralympics in the history of the games. He characterised it as an opportunity of lifetime to be internalising the social model of disability in the public discourse. Mr Frost described the momentous effort in implementing inclusive design and ensuring accessibility in the games.

According to him, the legacy of the games was twofold—first, the physical legacy of a transformed physical space which was disabled friendly; secondly, the philosophical legacy of valuing the disabled and rights of persons with disabilities. Ms Katharine Quarmby, journalist and author of the book Scapegoat, was however sceptical of the lasting impact of the Paralympics legacy. As a specialist in disability related hate crime, she expressed her disappointment in the games having failed in bringing about a balance in attitudes towards disability. She emphasised that the games could not substitute the lack of political will and action in disability policy. She concluded by highlighting the confusing messages the coalition government has sent in promoting Paralympic games on the one hand and the cuts in disability benefits on the other.

John Lish, expanded on the spate of decisions which have confirmed the disability cuts and how deeply they entrench the disadvantage of persons with disabilities. He pointed to the unhelpful and arbitrary distinction between social and healthcare needs for persons with disabilities and underscored the whole spectrum of needs which pan far beyond the accessibility needs highlighted in Paralympic infrastructural initiatives. Given the environment of austerity, he underlined the need for as much social funding as healthcare for persons with disabilities. Because the Paralympic legacy of changing attitudes seems rather passive, more concrete and facilitative steps need to be undertaken to realise the rights and freedoms of persons with disabilities.

Finally, Ms Alison Lapper MBE, celebrated artist and subject of the Marc Quinn sculpture ‘Alison Lapper Pregnant’, which appeared on the fourth plinth in Trafalgar Square, shared her personal experience with disability cuts. She spoke against the lack of debate and consultation in withdrawing disability benefits, something which belies the governing motto ‘nothing about us, without us’. She highlighted how care is the key to unlocking an autonomous life for persons with disabilities. By taking away care, the State is also slowly eroding the rights of persons with disabilities.

The ensuing discussion touched upon significant themes of mobilisation of the disability movement in today’s era, access to employment and education and disability hate crime. Closer home, Marie Tidball, the Chair of the Organising Committee of the event stressed on the personal and institutional need for reflecting upon making the University of Oxford a real home for over one thousand students with disabilities enrolled here. The event marked a first in not only organising a disability specific moot for students at the Law Faculty but also in bringing together a range of critical perspectives and consolidating the voices which support the realisation of rights of persons with disabilities.

On 11.12.13 the Supreme Court in Koushal reversed the Delhi High Court decision in Naz Foundation v Government of NCT (“Naz Foundation”) which had declared section 377 of the Indian Penal Code unconstitutional insofar as it criminalised consensual sexual acts of adults in private. Each of the petitions painstakingly reminds the Supreme Court of the arguments which although it had heard and read during the long drawn litigation, chose to forget while writing the Koushal decision.

Error Apparent on the Face of the Record

The Supreme Court can quash an order for error apparent on the face of the record. The error must be one of law not fact, and it must be manifest or patent and not mere error. Errors can only be traced in ‘Speaking Orders’ of the Court, that is, those which enunciate the reasons in law on which a decision is made. The Supreme Court’s order in Koushal enunciates its reasons quite clearly, though incorrectly, for reversing the decision in Naz Foundation. The errors apparent on a bare perusal of Koushal reasoning are now being challenged before the Supreme Court.

Review Petition by Mental Health Professionals

The review petition in Dr. Shekhar Seshadri & Others v Suresh Kumar Koushal & Others, recounts forty-one errors apparent on the face of the record. The ground for challenge is the material error on the face of the record ensuing from the failure to consider their contentions as the only party before the Supreme Court with professional expertise in the medical and mental health issues of LGBT persons. The Supreme Court in Koushal had reversed the Delhi High Court decision citing the petitioners’ failure to establish a factual foundation for the challenge to the constitutionality of section 377. The justices found the challenge “singularly laconic” and “wholly insufficient”, which “miserably failed” at establishing the particulars of the discrimination claim. In this petition, and in six others, the effort has been to remind the Court of not just the formidable factual foundation established before the Koushal Court, but in turn demonstrate the amnesiac outlook of the Court towards the case of review petitioners.

Two grounds covered by the mental health professionals are noteworthy. First, they show that the Koushal Court’s ruling on the lack of a factual foundation violates the doctrine of res judicata which debars litigation on an issue that has already been settled. The Delhi High Court had previously rejected the constitutional challenge to section 377 for lack of cause of action; but on appeal, the Supreme Court order dated 03.02.2006 remitted the case for adjudication before the High Court. The lack of cause of action had since not been contended at any stage. The issue of ‘lack of factual foundation’ had thus attained finality through the order of a four-judge bench on 03.02.2006 and its subsequent restitution in the Koushal decision is contrary to the doctrine of res judicata.

Secondly, the petition reiterates earlier submissions in the Supreme Court and those considered before the Delhi High Court, that: i) homosexuality was not a mental disorder but a normal and natural variant of human sexuality; and ii) the criminalization of LGBT persons adversely affected their mental health. These contentions were considered and reaffirmed in the Naz Foundation judgement at paragraphs 67-70. They were further submitted in detailed written and oral arguments along with authoritative scientific literature and remained uncontroverted in the Koushal Court. The Supreme Court’s failure to deal with these submissions is a material error that has resulted in a serious miscarriage of justice.

Error and Failure

Although the legal boundaries of a review petition simply require the petitioners to reveal an error apparent on the face of the record, the review petitions do this and more. They remind the Court to not just avoid an error, but to fix a colossal case of non-performance. The review stands for a reminder of the Court’s essential judicial function—to not abdicate its primary task of reviewing materials and making a decision based on the actual case raised before it. The review then asks the Court to not just do its job well, but perhaps simply to first do its job at all.

]]> https://ohrh.law.ox.ac.uk/reviewing-koushal-counting-down-the-errors-apparent-on-the-face-of-the-record/feed/ 1 4180 https://ohrh.law.ox.ac.uk/of-koushal-v-naz-foundations-several-travesties-discrimination-and-democracy/ https://ohrh.law.ox.ac.uk/of-koushal-v-naz-foundations-several-travesties-discrimination-and-democracy/#comments Thu, 12 Dec 2013 09:38:26 +0000 http://humanrights.dev3.oneltd.eu/?p=3702 There are many things wrong about the 98 page decision of the Indian Supreme Court in Suresh Kumar Koushal v NAZ Foundation. The Court’s extensive quoting but tenacious refusal to engage with the text of the Delhi High Court judgement (of which this case is an appeal); reciting but refusing to analyse the arguments made before the Court in any depth; the “self-restraint” in exercising judicial review which bleeds into the abdication of the constitutional mandate to review laws at the altar of fundamental rights; a misplaced reliance and eventual misapplication of the presumption of unconstitutionality; and the glaring absence of any well-considered constitutional analysis based on fundamental rights leading to the final decision of overturning the decision below that read down s 377 of the Indian Penal Code to de-criminalize consensual sex between consenting homosexuals. All these aspects present a wide template for criticising a rather unexpected, and deeply shocking decision.

Barely a day after celebrating the Human Rights Day and a few down registering a win for Indian democracy through the Delhi Assembly Elections with an impressive debutant performance of the grassroots Aam Aadmi Party (Common Man Party); we are handed the Koushal decision – leaving a disparaging impact upon human rights adjudication, in the name of upholding democracy. The core of the decision lies in the Court’s understanding of its role in adjudicating fundamental rights of the citizens and how it uses, rather poorly, the theories of separation of powers, democracy, judicial self-restraint and deference, all within the smokescreen of presumption of constitutionality (para 26), for dogging a concrete legal analysis. It is the manner of using this doctrine, which the Delhi High Court might have underplayed in its assertion that “there is no presumption of constitutionality of a colonial legislation”, which is problematic. The trouble lies in the Court’s failure in carrying the doctrine through to analyse the evidence before it for rebutting the initial presumption in reference to the Constitution. That is what the Court had previously done in Anuj Garg for a pre-constitutional provision stating that: ‘Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law.’

The lack of a full appreciation of the rebuttal based on fundamental rights, whilst jumping to the final decision that s 377 has no constitutional infirmity, is legally untenable. For the Court, the decision seems to have been made simply with the fact that a presumption existed at all. In its zeal to save s 377 it forgets that although presumed to be constitutional, the provision may still have to withstand constitutional scrutiny. The absence of any real and critical constitutional analysis is disturbingly omnipresent. The oversight in relation to Article 15 of the Constitution (the anti-discrimination guarantee) is perhaps most fatal. Whilst equality gets a passing reference (para 42), the Court turns a complete blind eye to the well-crafted Article 15 analysis of the Delhi High Court. In this way, the apex court at the end of 2013 further diminishes an already deplete discrimination jurisprudence in India.

Both Anuj Garg and the Delhi High Court had very carefully revived the content and scope of Article 15 by: (i) giving meaning to the harm of discrimination as infringing upon individual autonomy; (ii) realising the salience of grounds for extending the protection to ‘analogous’ grounds; and (iii) establishing a stricter standard of scrutiny in discrimination cases. The Court in Koushal bypasses even a bare mention of the discrimination framework before reaching its conclusion on Article 15. Had the Court referred to this framework it would have been reminded of its role in human rights adjudication. As noted in Anuj Garg: ‘It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy.’

It is the significance of rights like Article 15 on the right against discrimination which remind the Court of the value and consequence of protecting those rights. A Court which appreciates the prohibition of certain devious distinctions, also understands what it has to do in regards those distinctions. Repeated reliance on footnote four of Carolene Productsdoes little to aid the Court’s myopia where it should have ordinarily seen that ‘prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities’. By leaving it to the democratic procedures of the Parliament, the Court bypasses its own constitutional mandate of reinforcing democratic processes through judicial review. Instead, it abdicates the essential role of adjudicating upon a breach of fundamental rights, especially in relation to, ‘miniscule fraction of the country’s population’ (para 43), who have a right not to be discriminated against on the basis of their sexual orientation.

Shreya Atrey is a DPhil Candidate in Law at the University of Oxford, Chair of Oxford Pro Bono Publico and a regular contributor to the OxHRH Blog.

Context

Perhaps the greatest disappointment with the new law is its disengagement with the very constituency for whom it is meant for—women. It immediately neglects the Justice Verma Committee report and the continuing efforts of women’s groups since 2009 including the National Commission for Women to formulate better criminal laws for women. This legislative ‘unlearning’ especially when at least the Justice Verma Committee was appointment by the Parliament itself is a bizarre overture. And so is the absence of any legislative consultation before passing these amendments. The Amendment Act has no philosophical or grounding preamble – deeming it unimportant to give even a facial recognition to the developments leading up to the amendments. In effect, it reinforces the paradigmatic position of law as an isolationist and deeply hierarchical (patriarchal) institution. Speaking for and to women rather than as and with them, this law doesn’t quite speak in the tone set by the national feminist movement today.

Content

The new law disappoints with both what it does and doesn’t; such that it reinforces the legal paternalism for protecting women against gender-based violence rather than addressing it with the framework of rights. The content of the law is focused on harsher punishments for new or existing crimes. The death penalty is introduced despite clear voices against it. In reducing the response to gender-based violence to enhanced sentences (rigorous imprisonment and in some cases extending to imprisonment for life without the possibility of release), the law confirms allegiance to patriarchal forms of sentencing, which do not find any resonance with the theories of reformation and correction. 

Neither is there any mention of creating a robust structure of rehabilitation, counseling, support and assistance for rape survivors, nor is the amendment couched in the language which sees sexual crimes as a breach of bodily integrity and sexual autonomy. In fact, the Amendment Act leaves untouched Sections 354 and 509 of the Indian Penal Code, which are couched in terms of the notions of modesty and morality. Absent these conceptual shifts in the understanding of sexual violence, we remain in the protectionist mode rather than an enabling and empowering mode.

Further, there is no introduction of a broader provision on sexual assault or aggravated sexual assault committed against women with intersectional identities. The retention of section 377 despite the judgment of the Delhi High Court in the Naz Foundation decision, age of consent at 18 and the continued legality of rape in marriage remain problematic despite the stance of Justice Verma Report. Lastly, the strategy for protecting women by excluding men from the protection of these laws is a clear violation of right to equality and non-discrimination. 

In the several hits and misses of this Amendment Act, the question which remains is this: to whomsoever does this law concern? Neither does it seem to address the ilk of 16 December Delhi incidents nor does it seem to be emancipatory for all women and men. The Parliament then, really seems to have created a law unto itself.

Shreya Atrey is a DPhil Candidate in Law at the University of Oxford, and a regular contributor to the OxHRH Blog.

In comparison, the women’s movement in India surrounding the reform of rape laws has been fractured by its apparent display of universality. Within the demand of gender justice for all women and in particular for the 23 year old Physiotherapy student who lost her life fighting the brutal gang-rape and violence, is a small but strong sub-current for recognizing intersectionality in women’s identities for redressing these violations. These feminists urge that sexual violence is not just a matter of gender subordination but is also shaped by experiences of the intersections of gender with caste, creed, religion, class, age, disability or sexual orientation. In this sense, the experiences of rape or sexual assault are vastly dissimilar but equally shocking. The expression and the timing of this learning in intersectionality, has been dubbed as anti-feminist or at least unnecessary considering it is believed that any reform in general rape laws will generally benefit all women.

Although absent from the Criminal Law Amendment Ordinance 2013 and the Criminal Law Amendment Bill 2012, the Justice Verma Committee Report (“the Report”) is not oblivious to intersectionality, despite the absence of any concrete provision in this respect. At relevant points, it recognizes that discrimination and violence are not only gendered but are also equally borne out by the claimant’s caste, creed, religion or class. For example, in speaking of dismantling of stereotypes, the Report emphasizes on correction of aberrations like ‘the claim of upper caste to be able to overpower women belonging to dalit and oppressed sections of society’. The Report also considers how gender-based violence is compounded by the inequities of social status, caste prejudices, and economic deprivation. However, at other points the understanding remains additive and not synergistic, in that the discrimination suffered by a Dalit woman, on account of her Dalit identity is only “in addition” to being a woman. Thus, the intersection creates ‘double disadvantage’ rather than a unique experience through the interaction of the several intersecting grounds. This additive or compounded understanding conflates the uniformity and deflates the differences in women’s experience.

The possibility of having this ‘other’ narrative recognized in the language of law seems no brighter than it was several decades ago. Bhanwari Devi, the rape survivor from the case of Vishaka v State of Rajasthan was gang-raped because she was a Dalit woman working as an Anganwadi saathin, trying to convince her village against child marriage and hence challenging the authority of the upper castes. The outrage over her gang-rape gave all women the Supreme Court guidelines on the prevention and protection of women against sexual harassment. What went unnoticed was her own personal fight for justice or the collective fight of Dalit women for emphasizing that their intersectional identity is itself a reason of sexual violence against them. We lost an opportunity then (and much before in the case of Mathura, the tribal minor girl who was gang-raped in police custody) and we will lose one now if we continue without redefining the terms of the rape debate. Our response must both be intersectionalist and feminist – we must come together as women and we must then reflect the realities of all women. Thus, if the Parliament decides to insert a provision on aggravated sexual assault or rape perpetrated on the grounds of the complainant’s religion, race, caste, place of birth, age, disability, sexual orientation or any of them, we would have reflected our realities as women through intersectionality. And there can be nothing more feminist than that: that we lift those below us as we advance the ladder of gender equality.

Shreya Atrey is a DPhil in Law Candidate at Magdalen College, University of Oxford. 

This has resulted in three concrete proposals. The first, the Rights of Persons with Disabilities Bill 2011 (Committee’s Bill), was produced by a committee appointed by the Ministry of Social Justice and Empowerment to draft new legislation replacing the present Persons with Disabilities Act 1995. The second, the Draft Rights of Persons with Disabilities Bill 2012 (Ministry’s Draft), is a revised version of the Committee’s Bill prepared by the Department of Disability Affairs and was released in September 2012. Lastly, the ‘Draft of the Rights of the Persons with Disabilities’ 2012 (DRG Proposal) was prepared by the Disabled Rights Group, led by the disability-rights activist Mr Javed Abidi, and was also unveiled in September 2012.

A notable difference between these drafts is their differing formulations of the right to life provision. Section 10 of the Ministry’s Draft is a restatement of the right to life in Article 21 of the Indian Constitution, but does not contextualise it to reflect the concerns of PwDs. The DRG Proposal makes no mention of the right. On the other hand, the Committee’s Bill contains an elaborate provision on the right to life.  There are two reasons why the inclusion of such a provision is crucial.

First, the right to life under Article 21 of the Indian Constitution is seen as the source of other rights such as the rights to education, health, and a livelihood, among others. The Supreme Court’s Article 21 jurisprudence has become the bulwark of human rights enforcement and has inspired the drafting of human rights legislations including the Right to Education Act 2010 and the Sexual Harassment Bill 2010. Thus, if other rights are derived from the right to life guarantee, a comprehensive text on right to life lays down the groundwork for justifying separate consolidated rights legislation for PwDs.  By drawing upon Article 21 jurisprudence which guarantees a well-rounded life of flourishing, the right to life provision can provide a rich preface to a bill of rights for PwDs.

Secondly, the purpose of a right to life provision for PwDs is to reaffirm the value of disabled life since the disabled population has so actively been denied a right to life with dignity. Disabled person are routinely dispossessed of their sense of self and personhood. In a society which questions the need and consequence of the disabled life, this disregard for disabled life should itself be seen as a violation of right to life. Viewed as deficient and deviant, the narrative of the disabled life needs a radical overhaul through the text of right to life itself.

The bare right to life in section 10 of the Ministry’s Draft and the absence of a right to life provision in the DRG Proposal fall short of implementing the UNCPRD mandate under Article 10 which requires a more robust formulation to ensure the ‘effective enjoyment’ of right to life by PwDs on an equal basis with others. In contrast, Section 22 of the Committee’s Bill is a comprehensive formulation which weaves in Article 21 jurisprudence to guarantee a life of flourishing for PwDs. Sub-sections (2) and (3) are carefully crafted to afford full value to the lives of PwDs.  They also prohibit any procedure or practice which diminishes the value of their lives. Section 22 demonstrates a clear ethical obligation to preserve and protect disabled life and this sense must guide the final content of the entire text of the consolidated bill. If a consolidated bill of rights for PwDs was the initial fillip for implementing the UNCRPD, then the Committee’s Bill got it right the first time in drafting a right to life provision which justifies a rights-bill and also recognises the value of disabled persons’ lives.

Shreya is a MPhil candidate at Magdalen College, Oxford.