Exclusion is not always Discrimination

Article submitted by Vahini, SASTRA Deemed to be University.

Abstract:

The process of excluding or the state of being excluded is Exclusion, whereas Discrimination is the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex. But often these two terms are confused, it is necessary to understand that discrimination is treating equally placed people differently. On the other hand, the exclusion is to exclude. While discriminatory practices are treating a class of people differently from that of others within the system, Exclusionary practices are to exclude a particular class of people from the system itself. When it comes to discussing exclusion, the key idea is to find out why they are to be excluded, what threat do they pose to society? A very suitable example of an exclusionary practice would be hate-crime. Religious hate-crimes are rising as “others” (excluded set of people) are seen as a threat and this challenges the social order.

Right to Equality in this context:

In Indian Young Lawyers Association vs. The State of Kerala (popularly known as the Sabarimala Case) the major issues were: if the temple’s exclusionary practices amounted to discrimination under Article 14, which deals with Equality before the law, the absence of any special privilege in favour of individuals, and subjects the equally placed people of all classes to the ordinary law, Article 15 and Article 17 deals with discrimination and untouchability respectively. Before this case, women belonging to a certain age group were restricted entry into the temple. This restriction was removed as it was a form of social exclusion based on the menstrual state of women, few referred to it as untouchability.

Justice Indu Malhotra argued that allowing women’s entry into the temples was a societal morality that has been followed from generations even before the commencement of the constitution and did not require a constitutional morality. There were two sides to this case—one that questioned the constitutional morality whereas the other side struck a balance between the fundamental rights, one which favoured non-discrimination against any individual or group and the other allowing religious diversity in a secular polity. Are the restrictions at Sabarimala based on inequality? The practice of excluding the women from entering the temple is more to do with beliefs and custom than Discrimination, this exclusion is not discrimination.

Reasonable Classification- Intelligible differentia:

Article 14 is not a universal right and has exceptions to it. Reasonable Classification is the exception to Article 14. Article 14 allows classification but not class legislation. There are two tests of classification which are Intelligible Differentia and Rational Relation. Classification based on the Intelligible differentia distinguishes the excluded from the other group. The classification must be reasonable and not arbitrary.

In State of West Bengal V Anvar Ali1, it was observed that differentia must have a rational relation to the object intended to be achieved. There must be a reasonable nexus between the basis and the object of classification. Only in cases where there is an absence of a reasonable basis the exclusion is stated to be discriminatory. In Bachan Singh V State of Punjab2, Justice Bhagawati stated that rule of law should be free from arbitrariness. Thus, actions of the State should not be arbitrary as otherwise, the court would strike it as unconstitutional.

Right to Equality is a fundamental right of the citizens and a restriction on the state. It defines the exception to the powers of the state. The restriction also has an exception. However, there inequality in the country, giving equal treatment to unequally placed persons leads to injustice. The constitution will permit the state action against discriminatory practices if the difference is centred on “Intelligible Differentia”. Article 14 applies when equals are treated differently on the unreasonable ground and not when unequals are treated differently. Identical treatment in unequal circumstances would amount to inequality.

It does not forbid reasonable classification of person, objects, and transactions by the legislature to achieve the ends. This classification must not be arbitrary or artificial. The classification shall be reasonable if it is based on an intelligible differentia; which differentiates persons or things that are grouped from others. There are laws made which only benefit the children, this classification cannot amount to discrimination as it is reasonable and not arbitrary.

Exclusion and discrimination:

The right insists equal treatment to an extent where the people are assessed without any regard to their sex, race or gender which have been wide discrimination in the past. Impartial treatment is required for equality to prevail in society. But it cannot be generalised that discrimination can only be reduced to equal treatment as there are exceptions. There are exceptions to the equal treatment principle which include cases requiring different and specific treatment than equal treatment.

For instance, discrimination against pregnant women at the workplace, the law provides for treating women differently than men, here this exclusion is not discrimination as special treatment is required to be given to the pregnant women to make the workplace more friendly for them. Disabled people are excluded from certain acts and are treated differently to let them take opportunities. Again, here the case of exclusion or different treatment is not discrimination as they are dependent on others and it is a constitutional morality to provide these people special treatment. Hence, they are given special treatment than others.

Inference:

Exclusion does not always mean discrimination. Classification on a reasonable basis will not deny the right under Article 14. It not just emphasizes equality but also takes into consideration the changes from the judicial pronouncements that have shifted the focus on removing the arbitrariness. The Article has a wider scope to it in the current scenario than it had at the commencement of the constitution.

Citations of the case laws

1. AIR 1952 Cal 150

2. 1980 2 SCC 68