Equal moral membership: Naz Foundation and the refashioning of equality under a transformative constitution

The case for treating violence against women as a form of sex discrimination in India

“…As opposed to the Indian Supreme Court’s understanding of equality as a formal concept, scholars have time and again made the argument that equality as under the Indian Constitution is explicitly aimed at securing substantive equality for previously subordinated groups, since the framers understood the goal of equality as remedying systematic caste and sex-based hierarchy and discrimination (Bhatia, 2017: 115, 117; Nussbaum, 2001: 39). This vision is anchored in the provisions for affirmative action in the Constitution, which were included with the view that historically oppressed minorities should be able to acquire the abilities to compete on more equal terms with members of privileged groups (Sridharan, 1999: 144).…”

“…Both Khaitan (2016) and Bhatia (2017) have argued that Naz Foundation v. NCT of Delhi, 21 where the Delhi High Court decriminalised homosexuality, marked a move away from a formalistic version of equality, which had ‘crippled Indian Constitutional equality jurisprudence since its very inception’. Even though the Naz Foundation decision operated within the framework of the classification test ‘yet it infused them with a novel, transformative content, by focusing on the impact of Section 377 on disadvantaged and marginalised groups’ (Bhatia, 2017: 117). The focus here was on the law’s effect of targeting a community, perpetuating its social exclusion, and robbing it of its dignity (Bhatia, 2017: 130).…”

“…Even though the Naz Foundation decision operated within the framework of the classification test ‘yet it infused them with a novel, transformative content, by focusing on the impact of Section 377 on disadvantaged and marginalised groups’ (Bhatia, 2017: 117). The focus here was on the law’s effect of targeting a community, perpetuating its social exclusion, and robbing it of its dignity (Bhatia, 2017: 130). As Bhatia (2017) argues, this shifted the inquiry from examining the nature of the classification to examining whether the law disadvantaged a group.…”

“…The focus here was on the law’s effect of targeting a community, perpetuating its social exclusion, and robbing it of its dignity (Bhatia, 2017: 130). As Bhatia (2017) argues, this shifted the inquiry from examining the nature of the classification to examining whether the law disadvantaged a group. The court thus viewed equality not as an issue of ‘comparability’, but as a ‘right against hierarchy’ (Baer, 1999: 253).…”

“…And indeed, if substantive equality is the morality as derived from constitutional values, as opposed to ‘popular morality’, which is ‘based on shifting and subjective notions of right and wrong’, 24 then it is only a substantive understanding of equality which can truly fulfil the constitutional imperative: for it demands that there be no inequality, irrespective of whether the state actively causes it, or whether it perpetuates it by failing to act sufficiently. Further, if the workings of the ordinary political processes are indeed limited in their ability to protect vulnerable minorities, and the purpose of Article 14 is to offer redress to these very vulnerable groups (Bhatia, 2017), then state action cannot be a necessary prerequisite for an inequality claim.…”