Indirect discrimination: Rules aren’t really neutral

They are embedded, and operate within structures designed to benefit some and disadvantage others

AConstitution is written in the abstract language of fundamental rights and high principles. It only becomes a thing of flesh and blood when the people – who, in the words of the Preamble, have given the Constitution to themselves – use it to make claims against the State; and those claims, stemming from their lived experiences and concrete realities, are vindicated in a court of law. In the Indian constitutional tradition, these have invariably been ordinary citizens of the country, through whose efforts the Constitution has been given a meaning that goes beyond its stirring words, and penetrates the life of society. The cases they have brought to court have been seemingly innocuous, but their impact has been profound. And the most recent example of this was when the High Court of Delhi decided a case of denial of medical benefits, but in doing so, initiated a significant advance in our constitutional understanding of gender equality and non-discrimination.

Om Prakash Gorawara is a former Railways employee. Under the Railways Rules, his “family” – including his wife, Madhu, and his unmarried daughter – was entitled to medical facilities. Before his retirement, however, Gorawara removed them from his medical card, stating that he had “disowned” his family. The Railways withdrew medical benefits from them, on the basis that only those family members who were formally “declared” eligible by an employee could avail of the benefits. When the case came to the High Court, then, the question was simple: did Madhu and her daughter have a right to medical treatment because they were Om Prakash’s family members, or could Om Prakash – in his capacity as a Railways employee – decide whom to treat as his “family” for the purpose of the law?

The High Court’s answer was equally simple: on a plain interpretation of the rules, the entitlement of family members to medical facilities could not depend upon the “unilateral decision” of the employee; a spouse or a father could not, “without any rhyme or reason... decide to deprive what his family members would otherwise be entitled to.”

The court went further. It observed that the issue was not only about how to interpret the rule, but about the constitutional commitment to equality. Although the rule itself was framed in gender-neutral terms, guaranteeing medical treatment to the “spouse” of a “railway employee”, the concrete reality is that even in 2018, the workforce remained overwhelmingly male, and a disproportionate number of women remained in positions of economic dependence upon their husbands. Therefore, if the interpretation of the Railways was to be accepted, then it would serve to perpetuate this gendered and hierarchical division of labour, by giving (for the most part) husbands the power to deny their wives (or children) medical care in times of need. Such an interpretation would violate the commitment to gender equality Article 15(1) of the Constitution.

To substantiate his argument, Justice Ravindra Bhat introduced into Indian constitutional law the concept of “indirect discrimination.” Indirect discrimination refers to a situation in which a rule or a practice that is seemingly “neutral” or “colourblind”, nonetheless has a disproportionately adverse impact upon a set or group of people. For example, an office’s refusal to provide a crèche for its employees. While this formally disadvantages all parents equally, reality is that society continues to expect that mothers (and not fathers) be primary caregivers for children. The nonavailability of a crèche, therefore, is far more likely to discourage a mother from entering the workforce. Consequently, the concept of indirect discrimination reminds us that “rules” are never neutral; they are embedded, and operate within, a set of institutions whose very structure is designed to benefit some, and disadvantage others.

Over the last two decades, indirect discrimination has become a foundational concept in constitutional jurisprudence all over the world. While Indian courts have occasionally nodded at the concept, observing (for example) that pregnancy-based discrimination violates gender equality, the judgment of the Delhi High Court in Madhu vs Northern Railway marks the first time that an Indian court has breathed life and spirit into the idea. From a seemingly innocuous case about medical benefits, the Court has set us on a path where – in the words of Justice Albie Sachs of the South African Constitutional Court – what was hitherto considered as “misfortune to be endured” is transformed into “injustice to be remedied.”

IT IS THROUGH THE EFFORTS OF ORDINARY CITIZENS THAT THE CONSTITUTION ACQUIRES A DEEPER MEANING, PENETRATING THE VERY LIFE OF SOCIETY

Gautam Bhatia is an advocate in the Supreme Court The views expressed are personal