Interview: Discrimination Law 101 with Prof (Dr.) Tarunabh Khaitan
- Sregurupriya Ayappan*
There has been much furore over the recent constitutional amendment which introduced an additional ten percent reservation on grounds of economic backwardness as a class distinct from the already specified classes of SCs, STs, and socially and educationally backward classes. What is the reason behind this visceral opposition? It is because reservations are a device to ensure equality as envisaged by Articles 14, 15 and 16 of the Constitution of India. This takes into account the historical fact of structural barriers and disadvantages on the grounds of race, religion, caste, sex or place of birth. In other words, they seek to level the playing field by acknowledging and mitigating discrimination against one or more groups by others, based on structures of the given society.
However, discrimination as a legal concept is different from how it is used in common parlance. Discrimination law focuses on the effect on the victim and not on the intention of the perpetrator. This area of law deals with situations where a group of people is relatively disadvantaged in the distribution of certain tangible benefits on the grounds of some common attributes or characteristics that they all possess. These grounds may be strongly related to the disadvantaged group, leading to direct discrimination (which has been expressly recognized in India since the beginning), or they may have a disproportionate impact because of its strong connection to that set of attributes of the disadvantaged group, leading to indirect discrimination.
Indirect discrimination and other facets of discrimination have been gaining a surer foothold in Indian jurisprudence in recent years. There have also been legislative efforts to combat discrimination against specific groups. Yet, these were limited in scope and insufficiently addressed the complexity and intersectionality of discrimination as a concept and phenomenon. Shashi Tharoor attempted to bridge this legislative deficit by introducing a private member’s Bill to “protect everyone who are subject to all forms of unfair discrimination under a single comprehensive legislation which should be neutral and free from bias”. He sought the help of Dr. Tarunabh Khaitan, Associate Professor and Hackney Fellow in Law at Wadham College, Oxford University, and author of the widely acclaimed book ‘A Theory of Discrimination Law’ in the drafting of this Anti-Discrimination and Equality Bill. The Editorial Board of the Socio-Legal Review had the opportunity of interviewing Dr. Khaitan who kindly agreed to share his views on the subject matter.
1. You were closely involved with the drafting of the Anti-Discrimination and Equality Bill, 2016 (‘ADE Bill'). Existing laws such as Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 aim to redress the issues faced by disadvantaged groups. In so far as the atrocities and discrimination continues, have these laws failed? What are the three key aspects of ADE Bill that would make it more effective than the said legislations?
First, unlike the SC/ST Act, the ADE Bill is a civil rather than criminal legislation. This means that, in general, the victim has to satisfy a lower—civil—standard of proof rather than the higher criminal burden. It also allows the victim a greater control of the legal process compared to criminal law where the state becomes the main actor. Third, it focusses on compensating the victim rather than on punishing the discriminator.
Second, unlike all three laws, this is a general and comprehensive piece of legislation. It does not restrict itself to a particular disadvantaged group but seeks to protect all of them from discrimination. It also applies more comprehensively to the public as well as private sector and covers a much broader range of human interactions than any of the previous statutes.
Third, it has a broad and nuanced definition of discrimination, which includes direct and indirect discrimination, victimisation, harassment, segregation, and boycott. This definition is much closer to the actual experience of discrimination faced by victims.
2. In the last few years, numerous instances have been reported where discrimination has resulted in violence with fatal or near-fatal outcomes. For example, attack on Nigerian students in Greater Noida in 2017, cow vigilantism across states such as Uttar Pradesh, Rajasthan and Jharkhand, and assault on Dalits in Gujarat (for reasons such as attending garba, and owning a horse). Would a law on the lines of ADE Bill be able to curb the occurrence of such instances?
Most of these acts amount to crimes such as assault and murder and should be prosecuted as such. The ADE Bill can also permit parallel civil proceedings to seek compensation for discriminatory violence. Any civil liability under the Bill does not replace an independent breach of the criminal law. One innovation in the ADE Bill is the ability to get an injunction from the Magistrate for anticipated acts of aggravated discrimination (such as discriminatory violence). So there is a preventive dimension too. Furthermore, it also requires diversification of the police force and diversity training for police officers—once institutionalised, this should make the police more responsive to marginalised groups when investigating crimes.
3. Discrimination is deep-rooted and widespread in the Indian social system. It seems there has to be a social and civil dialogue involving each and every Indian citizen (across states, religious groups, linguistic groups, etc) that seeks to change the mindset that normalises discriminatory practices. Where do we start?
Law can only do so much. But the law is not irrelevant. It is a key player in shaping social discourse. A robust legal disapproval of discriminatory acts, and an effective implementation mechanism is a good start, but obviously only just that.
4. How should affirmative action be framed and implemented so that it is not perceived as discriminatory by people who would be deprived of opportunities because they have been categorised as not belonging to a disadvantaged group?
In my book, A Theory of Discrimination Law, I argued in favour of indirect affirmative action policies wherever possible and effective. These policies still seek to benefit a marginalised group, such as Dalits or women, but instead of directly using caste or sex as the means of classification, they use other proxy criteria that closely correlate to them. This was tried in Texas after a court outlawed race-based affirmative action. In response, a university promised admission to the top 10% of graduating students from every high school in the state. Given the racially segregated nature of Texan schools, this apparently race-neutral policy had a comparable effect to a race-based affirmative action programme. This sort of policy-making requires creativity and a sound sociological evidence base, but it can be successful in making affirmative action more palatable without succumbing to the ‘economic reservations’ agenda.
5. In your interview with David Edmonds on Indirect Discrimination for Philosophy 24/7, you have discussed how privilege operates in different silos and we all have our hands dirty since we are victims in some aspects and beneficiaries in others. In light of this, how does intersectionality practically work in discrimination law?
The point I was making in the interview was that even as many people suffer from discrimination of one sort, we are all also at least beneficiaries of, if not perpetrators of, discrimination of another sort. Intersectionality is different from discrimination based on multiple grounds. A Dalit woman suffers discrimination as a Dalit, and as a woman. But sometimes, the discrimination occurs because she is a ‘Dalit woman’. The problem of addressing intersectionality arises because of too much focus on the need to find the ‘appropriate comparator’ in discrimination law—if neither upper-caste women nor Dalit men suffer the discrimination you are complaining of, who do you choose as the right comparator. The solution lies in making the comparator-based approach sufficient, but not necessary, in proving discrimination. As long as a claimant can show that the discrimination is based on one or more grounds, that should suffice in taking care of intersectionality claims.
*Sregurupriya Ayappan is the Deputy Chief Editor of the Socio-Legal Review for AY 2018-19. The Editorial Board would like to thank Ms. Sanyukta Chowdhury, Assistant Professor, NLSIU for her help in framing the questions for the interview. We would also like to thank the Student Initiative for Promotion of Legal Awareness, NLSIU for inviting Mr. Khaitan to NLSIU and making this interview possible. Finally, we would like to express our heartfelt gratitude to Mr. Khaitan for taking the time out to answer our questions.
 The Constitution (One Hundred and Third) Amendment Act, 2019.
 Economic Reservation: Tehseen Poonawalla Moves SC Against Constitution Amendment, EWS Criteria (January 22, 2019), LiveLaw, https://www.livelaw.in/news-updates/economic-reservation-tehseen-poonawalla-moves-sc-against-constitution-amendment-ews-criteria-142310 (last visited February 5, 2019); Mehul Jain, Lawyers Challenge Economic Reservation in SC (January 21, 2019), Livelaw https://www.livelaw.in/top-stories/lawyers-economic-reservation-sc-142291 (last visited February 5, 2019).
 Article 15(1), Constitution of India, 1950.
 Tarunabh Khaitan, A Theory of Discrimination Law 42 (2016).
 An example of this would be to say that only upper caste Hindus shall be given housing.
 An example of this would be to say that only pure vegetarians shall be given housing. This again has a disproportionate impact on non-upper caste Hindus and people belonging to other religions because of the strong connection between the proxy criteria of eating habits and the attribute of caste and religion.
 Khaitan, supra note 4, at 72-74.
 See Navtej Singh Johar v. Union of India (2018) 1 SCC 791 (Supreme Court of India); Inspector (Mahila) Ravina v. Union of India W.P.(C) 4525/2014 (High Court of Delhi); Anuj Garg & Ors v. Hotel Association of India and Ors AIR 2008 SC 663 (Supreme Court of India); T Sareetha v. T Venkata Subbaiah AIR 1983 AP 356 (Andhra Pradesh High Court).
 See The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
 Anti-Discrimination and Equality Bill, 2016.