An Anti-Discrimination Law for the Socio-Economically Disadvantaged in India
- Surbhi Soni*
Consider the following: every year, students from well-off families are more likely to be successful at an entrance test, which comprises the same set of questions for all the appearing students; or, the requirements for employment at a corporation are such that applicants from Tier I and II cities are more likely to secure employment. Should these situations concern lawmakers? Or better yet, can laws of a country be challenged on the ground that they require individuals to show proof (or ‘papers’) for citizenship that property-owning wealthy individuals are more likely to possess?
Discrimination law (‘DL’) seeks to reduce, and ultimately remove, significant disadvantages that a group faces because of characteristics that members of the group possess. These characteristics are known as ‘grounds’. This paper argues for the inclusion of ‘socio-economic disadvantage’ as a protected ‘ground’ in (anti) discrimination legislation in India. It seeks to establish that ‘socio-economic disadvantage’ falls within the 2 eligibility criteria for DL, i.e., ‘group disadvantage’ and ‘immutability’. Thereafter, it argues that such protection is necessitated because ‘socio-economic disadvantage’ deprives people of 4 basic goods. Having established the purposive and normative reasons for the inclusion, the paper briefly discusses the distributive question of DL, i.e., determining the right-bearers and duty-holders for preventing discrimination based on socio-economic grounds in the Indian context.
II. ‘Socio-economic disadvantage’ as a protected characteristic
To contend the eligibility of groups that face ‘socio-economic disadvantage’ as a protected ground, this part uses Dr. Tarunabh Khaitan’s model for DL. DL requires that a ‘ground’ satisfy 2 cumulative conditions to be considered a ‘protected ground’: first, the ground must classify persons into groups with a significant advantage gap between them (‘Group Disadvantage’), and second, the ground must either be immutable or constitute a fundamental choice (‘Immutability’). The following paragraphs probe into each condition and conclude that ‘socio-economic disadvantage’ fulfills them cumulatively.
A. Group Disadvantage
The theoretical background of the Group Disadvantage condition comprises 3 components: the existence of a personal ground, cognate groups and relevant disadvantage(s). The first component, ‘personal ground’ connotes the existence of a characteristic that people have. In the context of socio-economic disadvantage, a person’s ‘socio-economic status’ (‘SES’) is the relevant characteristic that they possess. Thereafter, the cognate group condition refers to the classification of individuals into different groups, based on the said personal ground. Such groups are known as ‘cognates’. For example, cognates for discrimination on grounds of ‘sex’ will comprise males and females. Similarly, cognates for SES as the ‘personal ground’ will comprise ‘groups with low SES’ and ‘groups with high SES’. Finally, and most crucially to satisfy Group Disadvantage, the cognate group “must be significantly more likely to suffer abiding, pervasive, and substantial disadvantage than the members of…other cognate group”. Disadvantage for the purpose of DL is a broad phenomenon, encompassing political, socio-cultural or material disadvantage, or even a combination of these.
Broadly, socio-economic status connotes one’s social, economic and educational status. However, precise characteristics of one’s SES, or manifestations of its consequent disadvantage naturally invite debate. The Bill seeking to introduce ‘disadvantaged socio-economic status’ as a ‘disability’ in Ireland’s Employment Equality Act 1998 described the disability based on disadvantage “resulting from poverty, level or source of income, homelessness, place of residence, or family background”. Similarly, model legislation by a policy research organisation in India identified low income or poverty, homelessness and low educational qualification as determinants of socio-economic disadvantage in India. This paper thus refers to one’s social (or family) background, education level, and income level (and sources) as markers of SES. Based on these parameters, the Second Backward Classes Commission, constituted to identify ‘Other Backward Classes’, in its Report in 1980, classified 52% of Indian population as ‘backward’, or socio-economically deprived.
Forty years hence, deprivations among India’s socio-economically disadvantaged continue unabated. In 2011, 21.9% of Indian population lived in extreme poverty, earning less than $1.9/day. About 750 lakh people in India are either homeless or lack decent housing. Mindful of the multiple phenomena that determine the result of a criminal trial, it is, nonetheless, worth noting that as on 2016, 74.1% of prisoners sentenced to death in India were from economically vulnerable backgrounds while 61.6% of them did not finish secondary school education. Further, in a recent report for the Asia-Pacific Region, the International Labour Organisation observed that 90% of individuals with mere primary education end up working in the informal sector (without social security), as opposed to only 31% of tertiary-educated workers. The statistics cumulatively testify that SES manifests characteristics of a ‘protected group’ as it is a personal ground, common among its cognates, and results in material disadvantages.
Immutability of a ground connotes first, that it is not in the immediate control of those who possess the discrimination-sensitive ground to change it,and second, that the initial acquisition of the ground itself was not a voluntary choice. While the ‘initial’ SES of an individual is determined by the lottery of birth, changeability of SES requires analysis.
The association of low SES with poverty is well established. The ability to change one’s SES, therefore, at the most basic level, connotes moving towards increased income levels, better educational opportunities and safe and hygienic dwellings. In simplistic terms, the change in status is a function of acquiring more and better resources. However, Nobel laureate Amartya Sen recognises “the distance between resources and capabilities.” The capabilities approach postulates that an individual’s capabilities, and not resources, determine her freedom to pursue valuable things (presently, education, housing and income). It is a more direct indicator of one’s welfare, as it inter alia focuses on ends rather than means, and is more sensitive to individual variations in functioning and social arrangements. Thus, this paper uses Sen’s reconceptualisation of poverty as the lack of capability, to evaluate immutability of SES. It contends that disadvantages that result from low SES significantly and permanently impedes one’s ability to improve it, using empirical data on health and education levels among the low-SES groups.
Low SES often implies increased exposure to infections due to residential crowding, adverse water quality, low nutrition levels and increased psychological exposure to violence. Poor nutrition and infection result in poor adult health. That children from low SES in India commonly experience stunting and malnutrition, or that poor labour classes in India face increased levels of anxiety, are typical manifestations of SES in one’s health. Further, aware of their lower life expectancy, the poor are more likely to disregard their future health. The routine indulge of manual and informal sector labourers in smoking bidis, chewing tobacco and consuming alcohol is a testimony to this. Scholars note that strikingly, harmful lifestyle habits such as smoking cigarettes are much more prevalent as one descends the social hierarchy.
SES also adversely impacts one’s educational qualifications. Parents with low incomes are unable to provide adequate educational opportunities or encouragement to their children, especially for higher studies. Additionally, children with low SES are unable to engage in private coaching, participate in extra-curricular activities or do unpaid internships. Cumulatively, this impacts their college preparedness and prospects of a better higher education. For example, in 2019, only 1.6% of those who cleared NEET, the entrance exam for medical colleges, did so without private coaching (costing up to INR 5 lakhs). Similarly, in 2013-14, only 5% of students studying in the top five NLUs in India, came from families with an annual income of less than INR 1 lakh. College education bears upon the likelihood of being employed in formal sectors of the economy.
Consequently, children with low SES suffer disadvantage on crucial parameters of capabilities, i.e., health and education, which further restricts their pursuit of valuable goods. In that sense, SES is not only immutable to a great degree, but also self-perpetuating. The following statistic on income and growth in India confirms the alignment of theory and data on self-perpetuation and effective immutability of SES: From 1980 to 2015, income levels of the bottom 50% of the earners in India experienced a 90% growth rate, while the top 10% of the earners experienced a remarkable income growth of 435% in the same period.
Having traversed and established the requisite theoretical group characteristics that qualify SES as a protected ground, the following section probes more closely what practical experiences of one’s SES justify legislative intervention for their protection.
III. What justifies protection through discrimination legislation?
The point of DL is to promote personal well-being. Disadvantage impairs one’s well-being and freedom by preventing access to four basic well-being ‘goods’. These comprise first, biological needs, second, ‘negative freedom’, third, a ‘secured access to an adequate range of valuable opportunities’ and finally, one’s ‘self-respect’. The impact of the deprivation of the first ‘good’, i.e., one’s basic biological needs comprising nutrition, shelter, clothing or fuel, does not merit a detailed enquiry to establish its relevance as a constituent ground for justifying legal protection. Thus, this part examines the (non-)access to the three remaining ‘goods’, that is, negative freedom, self-respect, and resultantly, access to an adequate range of valuable opportunities.
A. Negative Freedom
‘Negative freedom’ primarily refers to freedom from unjustified interference in one’s life. More importantly, it also envisages that no one should be able to systematically or pervasively infringe upon one’s choices. It is contended that groups with low SES suffer systemic interferences of two kinds, ‘direct’ and ‘indirect’. ‘Direct interference’ involves the predisposition to facing disruptions due to the state’s development agenda. For example, ‘slum upgradation’ and ‘development’ projects require land acquisitions, past patterns for both of which reveal a tendency of acquisition of land from poor slum dwellers. Further, the fact that blue collar survivors of sexual harassment are less inclined to report it, since they fear losing employment, and hence, their livelihood, is another example of the relative ease and non-consequence of causing interruptions to their lives.
‘Indirect interference’ on the other hand, manifests in the form of assimilationist demands imposed on such groups. Kendrick Yoshino refers to these demands as ‘covering’, the phenomenon of the mainstream sectors of society and economy requiring the disadvantaged to ‘mute’ manifestations of their identity in return for non-discrimination. Empirical data to this effect is not recorded in research studies; it is the lived experience of individuals from lower SES when they attempt to imitate the dressing styles, hairstyles and manner of speaking of their counterparts from the privileged world. Thus, lower-SES groups make their poverty unobtrusive to successfully seek employment and other opportunities in the mainstream economy. This hampers their autonomy and self-expression on a fundamental cognitive level.
Individuals from low SES continuously face societal stereotypes, which harms their self-respect: they are often termed as ‘lazy welfare recipients’ whose SES is perceived as the result of lack of self-discipline, disinterest in education, and incompetency. Moreover, popular culture appropriations of their lives essentialise and reinforce such prejudices. For example, concepts such as ‘slum tourism’ (or poverty tourism) depoliticise and decontexualise poverty. The depoliticised deprivations are thereafter appropriated for the consumption of higher SES groups (for example, the popular Netflix Series ‘Jamtara’ which depicts (albeit true-events based) stories of a group of youngsters from a village involved in phishing scam. The popular film Slumdog Millionaire is also emblematic of such depoliticised representation, depicting poverty as “easily escapable with a little hard work and ingenuity”. Thus, the material disadvantage of lower SES evolves into a socio-cultural disadvantage. Popular representations, bolstered by real-life interactions with counterparts from the high-SES world, cumulatively then contribute to low self-esteems among low-SES groups.
C. Valuable Opportunities
In the previous sections, this paper examined the immutability of weak capabilities in individuals from lower-SES groups that result inter alia from biological and cognitive deprivations due to low health and education levels. Thereafter, it examined ‘direct’ and ‘indirect’ systemic interferences with the lives of such individuals. While direct interferences deprive them of ‘biological goods,’ indirect interferences pervasively require them to assimilate with the mainstream norms to access economic and social opportunities thereby infringing on their right of expression and autonomy. Finally, the paper probed stereotypes about low-SES groups, including popular misnomers such as ‘lazy welfare recipients’. The aggregation of such deprivations, systemic immutabilities, and interferences leads to the deprivation of a ‘secured access to an adequate range of valuable opportunities’, gatekeeping the entrance of lower-SES groups to colleges, jobs, and societal enterprises. For example, employers often screen applicants based on their residential address or the region they come from, using these parameters as proxies for deciphering their ‘class’ status. Similarly, socio-economic marginalization is routinely noticed in Indian housing societies, in a familiar parallel to the blocking of affordable housing in high-income communities in the USA. Such segregation reinforces caste-based segregation and economic marginalization, most apparently so in urban India, and reproduces hierarchies that rural emigrants seek to escape. Thus, condemned to lower-paying jobs often involving manual rather than skilled labour and ghettoised housing, the low-SES groups are deprived them of valuable economic and social opportunities, which collaterally also impact their self-esteem.
The above sections confirm that socio-economic disadvantage is far more severe and multi-faceted for it to be considered a mere inconvenience. Moreover, it manifests over a period of time and is also self-perpetuating. Therefore, its substantial, pervasive and abiding nature constitutes the significant quantum required for the intervention through DL.
IV. Distributive questions of DL in India
Having established the basis for protection through DL, this part engages with the different kinds of intervention that DL employs to remedy group disadvantage. It also examines potential socio-economic entitlements in India, and addresses a unique dilemma of Indian DL regime.
A. From Discrimination to Diversification
The purpose of DL is to systemically redress significant, abiding and pervasive disadvantage. The possible spectrum of such redressals may be understood dichotomously: first, redressal in the form of imposition of duties to not wrongfully exacerbate disadvantage of protected groups, that is, to not discriminate against protected groups. If these anti-discrimination duties are breached, persons discriminated against are vested with reflex rights, entitling them to reasonable accommodation. The Anti-Discrimination and Equality Bill (‘the Bill’), introduced by Dr Shashi Tharoor in the Lok Sabha in 2016 (albeit it did not envisage socio-economic status as a prohibited ground for discrimination), cast specific duties on inter alia employers, landlords and public authorities to take reasonable steps to ensure that persons from protected groups do not face discrimination, harassment, segregation, boycott or victimization. Proven breaches of these duties would invite mandatory diversification measures, monetary penalties, and apology, etc, per the Bill.
The second kind of redressal is in the nature of affirmative action. Unlike duties, affirmative action is not contingent on a specific past wrong, and does not lead to diversification entitlements on specific persons. For instance, the Bill envisages umbrella ‘diversification duties’ (in the nature of affirmative action redressal, as opposed to anti-discrimination duties in the nature of duty-based redressal) on all public secondary and tertiary educational institutions, housing societies (with over 50 residential units), as well as private establishments performing public functions, and employers (with over 100 employees) to report their diversity index to State Equality Commissions. Based on diversity indices, each of these institutions would be required to progressively realise diversification and undertake sensitisations of their personnel. Diversification may include granting of scholarships by educational institutions or providing special pre-recruitment training. The 103rd Constitutional (Amendment) Act, 2019, which provides for 10% reservation for economically-weaker sections (‘EWS’) in higher educational institutions and government employment for families with an annual income below INR 8 lakh, resembles an affirmative action remedy. However, in addition to ratification concerns, EWS reservation also explicitly excludes parameters of social backwardness, educational levels, and sources of income, making it an unreliable instrument for the protection of low SES groups.
B. Unique Dilemma of Socio-Economic Diversification in India
However, DL in India raises a unique dilemma of intersectionality of discrimination. Low SES is likely to overwhelmingly overlap with ‘low’ caste status, which raises doubts as to the utility of including SES as a stand-alone protected ground. This is a conflation of a purposive question with the distributive one. As long as disadvantages that uniquely accrue due to one’s SES justify intervention, their normative value is not reduced due to manifestation of the disadvantage in combination with other markers of discrimination. Exemplifying a broad conceptualization of DL, South Africa recognizes ‘socio-economic status’ as a protected ground, along with race despite a history of Apartheid. Finally, in any particular dispute resolution, it is perfectly consistent with DL, that the most disadvantaged stake the first claim to State protection. For example, the Bill proposed that the to-be Central Equality Commission would devise formulae to facilitate comparisons of relative deprivations between different disadvantaged classes.
This paper examined the basis for protecting groups with low-SES from discrimination. Immutable group disadvantage, coupled with overlapping deprivations of four basic ‘goods’ necessitate intervention through DL, to prevent wrongful exacerbation of the disadvantage faced by low SES groups. Ensuring adequate protection through duty-based intervention and affirmative action will promote diversification and ensure that those seeking employment, education and other kinds of social and economic integration are not gatekept to their socio-economic status.
* Surbhi Soni is a penultimate year student of the National Law School of India University, Bangalore. She is thankful to Prof. Rashmi Venkatesan for her comments on an earlier draft.
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