Evolution of Jurisprudence on Sexual Harassment of Women at the Workplace with Reference to Constitutional Values

Anagha Sarpotdar

The State shall not deny to any person equality before the law or the equal protectionof the laws within the territory of India.

These fundamental rightsare enforceable bycourts Thismeans that a legislative orexecutive action can be challenged by citizens as being unconstitutional if it violatesthe rightsguaranteedunder these provisionsItisusually through such challenges thatcourtshave developed the scope of-. “equality” asa concept Over a periodoftime, courtsevolved judicial tests to apply the concept ofequality inparticular cases todetermine if there has been a violation ofequality Inherently, such an exercise isretrospective and only tests state action allegedly breaching equality.

The first is the Classification Test, according to which, Article 14 forbids legislationor other forms of State actionthat treat different classes ofpeople differently, exceptifthe classification ismade on the basis ofan-. “intelligible differentia”-. that separates onegroup from the rest upon clearly identifiable criteria, and the said intelligibledifferentia has a rational nexus with the object of the legislation The traditional Classification Test requires the judiciaryto conduct this assessment without passingany judgement on the objectofthe legislation itself-..

More recently, the Classification Test has been expandedtoinclude a more rigorous standardofscrutiny where courtscan, in some cases, assess the legitimacy of the object of the law as well.

This was followed by the Arbitrarines’s Test, applying which, the judiciaryexamines if the impugned law treats persons in an arbitrary manner where theexpression “arbitrarily” means “in an unreasonable manner, as fixed or donecapriciously or at pleasure, without adequate determining principle, not founded in (Footnote No. 3 contd. (3 Nothing in this article shall prevent Parliame nt frommaking any law prescribing, in regard to a class or classes of employment or appointme nt to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territo ry prior to such employment or appointment. (4 Nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represen ted in the services under the State... (5 Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religi ous or denominational institution or any member of the governing bo dy thereof shall be a person professing a particular religion or belongin g to a particular denomination.

This has further developed into the concept of “manifest arbitrariness”. which is “something done by the legislature capriciously, irrationally and/or without adequate determining principle”.

Both these tests and sometimes a combination of them, are used by the judiciaryto effectuate Article 14. However, each iscritiqued as being inconsistent and limitedin scope.

There is considerable debate amongs t scholars and judges alike as towhether these tests are exclusive of each other, can be applied together, are adequate, or are limited in addressing issues of inequality.

The limitations of these tests stem fromequating them withthe concept ofequalityitself Judicial tests of this nature can only be designed and employedcorrectly when the conceptual understanding of their goal is clear In this chapter, we limit ourselves to treating the tests as indicative of the concept trying to beachievedwithout delving into how effective the tests are at achieving it At times, thefailure of the tests is telling of the lack of conceptual clarity through theirmisapplication with respect to the meaning of equality sought to be achieved, ratherthan a lacuna of the tests themselves.

Another error, in our view, in trying tounderstand the constitutional value ofequality from the prism of Article 14 alone is that the value itselfextends far beyondthe rights framework in Part III of the Constitution While “equality” is seen to be Judicial Conceptualisation of Equality

Conceptualising Equality

For example, the Preamble expressly envisages a State that secures for its citizens, “quality of status and of opportunity assuring the dignity of the individualThe Directive Principles of State Policy (DPSP also envision certain conceptualaspects of equality.

Before we delve further intothe Indian judicial understanding of equality, it isimportant to understand, more generally, whatthis concept entails The second sectiongives a brief explanation of the dominant theories of equality that readily lend themselvesto judicial reasoning The third Section explores how Indian Courts have developed the concept of equality, most recently through “d ignity”, and their links with these theories.

The fourth Section analyses Indian dignity jurisprudence in understanding equality.

Equality is a difficult concept to capture in words, especially because it does not exist innature Justice Bose grappledwith this inasearly as 1952 when he pondered, “What does equality mean? All men are not alike.

Some are rich and some are poor Some by the mere accident of birth inherit riches, others are born to poverty There are differences in social standing and economic status.

High sounding phrases cannot alter such fundamental facts”.

Equality understood as “sameness.” can mean little unless we ask “between what?” and “in what context?”Despite this, it is a powerful and uniting concept that often ”. The Supreme Court in Indra Sawhney vUnion of India found the goalof the right toequality to be “equality of status and of opportunity” as envisioned in the Preamble State of West Bengal vAnwar Ali Sarkar

It helps to turn to the study of egalitarianism, justice, andequality to see howcenturies of thought have shaped the idea Since antiquity, equality has beenconsidered an ideal to be strived foras a constitutive feature of justice.

An earlyunderstanding involves “fairness” in treatment bytreating “like cases alike”.

A corollary is that differential treatment to persons that are unequal or different insome respect is justonly if the differenc e in treatment is proportional to thesefactors of difference Some version of this understanding lives on through the Classification Test, which allows different classes to be treated differently.

However, this understanding does not assume that all persons are equal It merelyasserts that there should be consistency in treatment depending on similar traits, such as social status and race.

Some have treated this as an application of rationalthought because it is irrational to treatsimilar cases differently without sufficientreason.

In time, there evolved the idea that all human beings had inherent equal worth.

According to this idea, everyone deserves the same dignity and respect.

It is now Judicial Conceptualisation of Equality

According to it, equality is not “sameness.” and differences in people requirethoughtful treatment, not necessarilythe same treatment, from the State toensuretheir basic moral worth is respected.

This is an account of western philosophical thought and the nature andchronology of the development of eastern thought, especially Indian, on equality., isbeyond the scope of this chapter However, it is important to note that the basicidea of equal intrinsic human worth was wellestablished in philosophical studiesfrom the Indian subcontinent such as those of the Bhakti Movementand itsregionspecific development, for example, Basaveshwarain modernday Karnataka

The next question to be addressed is—what isthe consequence of thepresumption that all individuals are morally equal? where all persons are enabled withequalopportunities to achieve the advantages of superior positions and postsbased on their merits and qualifications Here, strict outcome of equality isstill not achieved but differences appear tobe justified rather than being a matter of luck.

This understandinggoes beyondthe traditional frameworks of distributive justice that focus onmaterial goods and the elimination of luck It focuses, rather, on theperception of individuals by others.

Factors such as the distribution ofmaterial goods, public offices, and treatment of the individual by the Statecan affectthisperceptionbut status in society is the goal and the factorsmentioned above are mere means to achieving that status rather than itbeing goals themselves Viewed in these terms, first,Second, the State should eliminatesocial hierarchies and cultural imperialism that impede relational equality.

Third, basic material conditions that enable people to enjoy respect insociety—adequate nutrition, shelter, education, and medical care—have tobe assured.

This is not to say that every set of facts in the cases before courts will lend itself to the application of any one clear conceptionof equality Nonetheless, clarityregarding the various goals an

Judicial Conceptualisation of Equality The Role of Courts in Realising Equality

The constitutional guarantee of equalitywas crafted amidst severe discriminationand injustice—both from colonial forces and fromlongstanding hierarchicalcultures that did not recognise equal moral worth.

Equality, as a concept, wastherefore integral in the veryformation of the new nation While the legislature andexecutive are burdened withthe taskof proactive action towards achieving equalityfor its citizens, it has often fallen to the courts to shape the contours ofthis concept.

Being the primary enforceable right relating to equality, Article 14, has beenstretched to simultaneously accommodate various aspects of equality described in the previous section However, the right to equality under Article 14 is somewhatlimited inits realisation ofthis ideal as itis burdened with the constraint ofbeingrealistically enforceable and primarily comesbefore the courts as a challenge to Stateaction The judiciary has struggled with the taskof balancing enforceable legalequalitywith the lofty ideal of moral equality, that is, equal worth and dignity for allindividuals despite their differences.

All that Article 14 guarantees is equal general rights and duties of citizens, groundedin general lawsthat apply toall equally—this isthe postulate of legal equalityon a bare reading of the text.

It governs State interaction with citizens. (not directly theway they interact with one another and ensures that no individual or group receivesany favour or special treatment over another This principle is basic to the Rule of Law, a driving force ofearly equality jurisprudence in India By aiming at verticalequality., that is, equalityin the treatment of citizensby the State, the Constitutionguards against hubris and abuse by those exercising State power to claim superiorstatus and against the use of the State”s power to dominate individuals.

The Arbitrariness Test is rooted in this understanding of equality as a check onexcessive State power Some consider the judgment inin 1973 to be the origin of the test.

An oftquoted section of the judgmentstates that, “equality is antithetic to arbitrariness In fact, equality and arbitrarinessare sworn enemies; one belongs to theHere, equality is understood as theprotection of ordinary citizens from arbitrary and capriciousstate power, reminiscent of the type of whimsical royalpowers that the principle of Rule of Lawwas evolved to destroy.

Beforeat the time, Article 14 was viewed primarily through theprism of the Classification Test whic h required comparison between groups.

A significant advantage of the Arbitrariness Testis that it enabled arbitrary State actionitselfto be declared unequal without correlation to a similarly circumstanced personor group.

Nonetheless, the idea of equality as a corollary of the Rule of Law existed prior toInthe Supreme Court observed that EP. Royappa vState of Tamil Nadu rule of law in a republic while the other, to the whim and caprice of an absolute monarch ”. Royappa, arbitrariness was not as clearly equated to inequalityIn Sarkar, for instance, arbitrariness arising from anexcessive delegation of legislative powers and infringement of Article 14 were consid ered two separate grounds to challenge the impugned legislation RoyappaS.GJaisinghani vUnion of India,

“the absence of The judgment even referred to American and British sources that heraldtheidea of the modern legal system asfreedom fromdespotic monarchical power.

Again in,granted to the executive ingovernmentappointments The case ofThe Supreme Court inJudicial Conceptualisation of Equality arbitrary power is the first essential of the rule of law discretion, when conferred upon executive authorities, must be confined within clearly defined limits”. State of Mysore vS.RJayaram, the Supreme Court used Article 14 to counter “arbitrary power of patronage” Indira Nehru Gandhi vRaj Narain, which tackled power retention tactics by the then Prime Minister of India, saw an exposition of the guarantee of equality asan aspect of the Rule of Law These early cases that laidthe foundation for the Arbitrariness Test dealt with fact situations where the State was accused of having wielded its powers in an irrational or whimsical manner rather than on any discernible discriminatory or deliberate exclusionary basis It is no surprise, therefore, that the essence of this test is limited in scope Inequityand discriminationcome in various forms and often have sociocultural or economic bases that do not always stem from excessive State powers or personal feuds ofthose in power Despite this, the judiciary has used the Arbitrariness Test repeatedly even in situations that demand a different approach to the extent that it has now lost its meaning and has itself become the very thing it was designed to prevent—arbitrary Madras Bar Association vUnion of India took a welcome step awayfromoverreliance on thistest In this case, the petitioners challenged an ordinance that made sweeping changes to the administrative setup of various tribunals, resulting in arbitrary changes to the terms of employment of tribunal members The Supreme Court characterised this executive intrusion into judicial functioning as a violation of the doctrine of separation of powers It correctly identified the separationof powers as a facet of the Rule of Law and, through this conceptual link, found the doctrine of separation of powers to be “a consequence”

against persons for inherent traits or for belonging to a group as a tool to perpetuate oppressive social regimes In such an environment, the oppressedare seen as having less worth than others—theantithesis of equality It is culturallysought to be justified in a multitude of ways—inherent evilness (criminal tribes; pollution, inviting feelings of disgust (certain castes, sex workers, menstruatingwomen; inherently diminished capabilities (certaincastes, women; religiousloyalty; or othering of the less understood (tribal, LGBTQ+ persons.

Prejudice is built through complex psychological and sociologicalprocesses thatcannot easily be addressed through State action Nonetheless, Indian courts have attimes attempted to grasp the injustice of these systemsand dismantle them throughthe constitutional ideal of equality.

Equality as NonDiscrimination As seen in the previous section, protec tion from capricious and unpredictable exercise of power is one facet of equalityThere exists., however, a more visceralviolation of inherent moral worth in all humans—systematic and deliberate discrimination

Looking beyond the Limited “Grounds” of Article 15Article 16(2 forbids the State from discriminating on grounds only ofrace, caste, sex, descent, place of birth, residence, or any of them with respect to employment by the state Article 15(2 forbidspersons (andnot onlythe State from subjecting citizens to restrictions in access topublic spaces and amenities.

As part of the Equality Code, these Articles are a significant indicator thatone facet of “equality” in our Constitution is nondiscrimination..

However, nondiscrimination jurisprudenc e is still far from sophisticated the judiciary has had to grapple with the contention that, because the prohibitedgrounds of discrimination are specified in Articles 15(1 and 2, discriminationon other grounds is permissible Moreover, Article 15 is criticised for being limitedin addressing intersectional or multiground discrimination.

Nonetheless, Article 14 and the general concept of equalityhave increasingly been invoked to deal with casesof discrimination grounded in social biases.

In some cases, Article 14 has been invoked to expand the scope of the existinggrounds in Article 15. InIn other cases, Article 14 has been directly relied on to expose intersectionaldiscrimination..

For example, in the recent case of Judicial Conceptualisation of Equality Article 15(1 forbids the State from discrimi nating on the grounds only of religion, race, caste, sex, place of birth, or any of them National Legal Services Authority vUnion of India, the Supreme Court found that the ground “sex”, as specified inArticles 15 and 16, includes gender identity Vikash Kumar vUPSC, the Supreme Court identified the intersectional nature of discrimination that differentlyabled persons face as a problem to be addressed by the State infulfilling

Here, direct reliance on Article 14 was requiredbecause the physical ability is not an identified ground of discrimination under Articles 15 or 16.

In a bold move, the Delhi High Court in This judgment, which struck down the interpretation of Section 377 of the Indian Penal Code (IPC that criminalised homosexualintercourse, looked beyondthe seemingly innocuous letter of the law thatcriminalised all “unnatural”-. acts of sex, to its discriminatoryimpact againsthomosexual persons.

This judgment was notable for considering the impact of thelegislation rather than mere intent and situating the legislative impact within a socialcontext to assess discriminationexample of judicial insensitivity to discriminatorysocial beliefs is the case ofdecided in 1981.

Naz Foundation vGovernment of NCT Delhi, recognised grounds other than those explicitly mentioned by holding that discriminationon grounds “analogous” to those in Article 15 also violates the guarantee ofequalityAttacking Prejudice at Its Roots A glaring and muchdiscussed Air India vNergesh Meerza In that case, Air India service conditionsthat afforded superior pay and promotional avenues for male flight attendants as comp ared to female flightattendantswere challenged as being discriminatory on the grounds of sex The Supreme Court applied the Classification Test and found the division of the flight attendants into Pursers (male flight attendants and Hostesses (female flight attendants to be based on rational differentia, that is, sex It fu rther upheld provisions discriminatory to

However, the subsequent celebrated case ofIt embraced a higher standard of scrutiny by assessing the objective of thelegislation itself to uncover inequitable agendas In this case, a rule restricting theworking hours of women in establishments serving alcohol, purportedly for their ownsafety, was challenged-.. The Supreme Court questioned the belief that the burden ofprotecting women is discharged by restricting their movements and insisted, instead, that the work environment should be made safer to enable women”.s agency Thiswas a significant shift from understanding equality through platitudinous statements toarticulating the exact nature of prejudice the marginalised group, in this case, women, faces Another example of this can be seen ina case that tackled thepractice of preventing entry of menstruating women into the Sabarimala temple The Supreme Court examinedthe notions of pollution associated with menstruation andthe purity accorded to sacred spaces that are notionally defiled by biological traits The Court, thus, examined the verynature ofdiscrimination itselfto uphold the conceptof equality.

The role of the courts here is tointerpret the provisions ofthese statutes in such a way that it leads to as full a realisation of the constitutional ideal of equality as possible Courts can play this partonly when such laws or their implementation become a matter of dispute Thesecases can be decided by restricting oneself to statutory provisions without resortingto fundamental rights Nonetheless, the Courts have, inmany instances, referred to the fundamental right of equalityto justify expansive interpretations of suchlegislations, elevating Article 14 from a negative right to moral duty upon the state.

Judicial Conceptualisation of Equality Anuj Garg dissuaded gender stereotypes Sabarimala, Constitutional “Equality” to Bolster Social Justice Legislation The State proactively makes laws to encourage relational equality byprohibiting discriminatorypractices Anexample of such State action to regulate how human beings interact is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, SC/ST Act, which pe nalises degrading and ostracising caste discriminationpractices against fellow citizens..

Inthe Supreme Court had to decidewhether to believe certain Dalit witnesses” accounts of prohibited castebasedatrocities to determine the punishment of the perpetrators under the Protection of Civil Rights Act, 1955 (predecessor of the SC/ST Act The matter was limited to the quality of evidence and therefore, there was no need to refer to any fundamentalrights Accordingly, Justice Kuldeep Singh confined himself to “the merits of theappeal” while, on the other hand, Justice KRamaswamy went into “sociological andconstitutional angulations atgreat length”,including Article 14. The object of the SC/ST Act was to punish “preaching and practice of Untouchability”. He found thisobject to be an extension of the constitutional scheme designed to dismantlediscriminatorysocial systems and realise the concept of “equality” as guaranteed by Article 14, thus linking nondiscrimination with equality.

Notably, his judgmentalso relied on the motivations behindthe Preamble to visualise the goal of equality.

Similarly, inAccording to thisjudgment,Thiskind of logic takes a step back from the development discussed later, where decadesof jurisprudence have come to the conclusion that positive actions by the State toensure equality is itself a facet of equality and, thus, nondiscriminationA conclusion of this line of thinking is thata State that does not take positive actionstowards creating an enabling environment for its marginalised sections is itself a discriminatory regime However, according toState of Karnataka vAppa Balu Ingale, Vikash, the Supreme Court used principl es of equality under Article 14 to actualise the provisions of the Right’s of Persons with Disabilities Act, 2016 (RPwD Act In a semantic anomaly, the obligation of the State to provide an enabling environment for persons with disabilities to participate equally in public life was seen to be something more thannondiscriminationnondiscrimination is limited to prohibiting prejudicial treatment while affirmative action by the State is a st ep above and beyond nondiscrimination Vikash, a State that prevents active prejudice against marginalised groups has already fulfilled the goal of nondiscriminationbut not equality, creating conceptual inconsistency in nondiscrimination jurisprudence.

Equality as the Fair Distribution of BenefitsThis rings true in Indiaas well, where the government enactsseveralschemes for fair distribution of benefitswith the aim of achieving some sort ofequality—both in outcome and opportunity.

One such prominent measure is affirmative action for elected posts, recruitment ingovernment jobs, admission to governmentcolleges, etcfor persons who face a social setback This is both to enable adequate representation of various classes(equality of outcome and to create a level playing field for persons to compete forthese benefits (equality of opportunity.

The Supreme Court inThus, cases regarding reservations becamefertile ground within which to shape the concept of equality One of the most significant developments in equalityjurisprudencehas been the way Article 15(4 and Article 16 (4, which provide for affirmative actionand “special provisions” by the State for groups that have been historically disadvantaged, are viewed within the Equality Code Initially, the two were seen as permissibledepartures from the formal equality where every person had to compete for benefitswithout any favourable treatment by the Stateregardless of the differential conditions of the person.

It supposes a default state of equality in the world that merely has to bemaintained, rather than acknowledge that many people are already at a disadvantage andrequire correctional beneficial treatment for equality in outcome.

Judicial Conceptualisation of Equality Models of distributive justice are essential to the Indianequalityframework In her study of Canadianjurispru dence on equality, Réaume points out that “[m]uch of what government does is to distribute goods: rights, powers, immunities, opportunities, benefits, etcand thus also duties, liabilities, burdens, etc.”. Union of India vRakesh Kumar articulated this link between equality and distributive justice in reference to affirmat ive action—“-.It is a wellaccepted premise in our legal system that ideas such as substantive equality and distributive justice are at the heart of our understanding of the guarantee of equal protection before the law””.”

However, subsequentjudicial reasoning did not mischaracterise them asexceptionsto equal treatment Instead, theyrecognised these provisions asinstrumental in achieving equality.

Inthe Supreme Court recognised that “Our Constitution envisages equal respectand concern for each individual in thesociety and the attainment of the goal requires special attention to be paid to someHere, the reasoning attempts to base affirmative actionon the individual worthinherent in each person by emphasising respect and concern It avoids identifyingthe exact philosophical basis for thisfinding, but the connectionisan importantdevelopment Equality issought to be achieved through the redistribution ofbenefits not merely in a fair way but also through a powerful acknowledgement of the disadvantage faced by marginalised groupsthe right to dignity isnot clearlyidentified in the Indian Constitution Dignity finds a place in the Preamble, guidingthe interpretation of other constitutional provisions Though the Indian judiciary Vikas Sankhala vVikas Kumar,... giving... concessions to the reserved category persons ensures equality as a levelling process At jurisprudential level, whether reservation policies are defended on compensatory principles, util itarian principles, or on the principle of distributive justice, fact remains that the very ethos of such policiesis to bring out equality”. Equality as a Guarantee of Human Dignity Recent Indian jurisprudence has come even closer to the conceptual understanding of equalityas equal moral worth by linking equalitywith human dignity Unlike other jurisdictions, such as South Africa,

In fact., the preamble of the International Covenanton Civil and Political Rights (ICCPR states that the rights it contains. “derive from the inherent dignity of the human person”. The very first article of the Universal Declaration of Human Rights states all to be “equal in dignity and rights”.

Indian courts have espoused thistheory by recognisingdignity as a foundational value for human rights or finding thathuman rights are designed to protect human dignity.

This has played a significantrole in developing unenumeratedrights like the right to privacy.

The concept of human dignity is linkedclosely with equalityasbothflowfromthe idea ofeach human being having inherent moral worth.

Somethinkers assert that human dignity is inherent in every human being, equating itto a sort of moral worth.

To help illustrate thispoint, we can consider Denise Réaume study of the concept ofequality inCanadianjurisprudence.

She foundthat the concept of dignity helped elevate the understandingof equality fromterms of comparison to ensuring an enabling environment for all In her paper, she studied cases where the Canadianjudiciary assessedthe criteria fordistribution of benefits by the State against their equality guarantee Sheidentified the familiar problem with judging claims of this kind—the court oftencompares the aggrieved claimant with the group that has the benefit and judgeswhether the difference justifies the denial of the benefit to the claimant., similarto our Classification Test She found such an exercise limited in ensuringjustice.

This is true of Indian equality jurisprudence as well,for example, inThus, equalitybreaks out of the trappings of “sameness” and instead transcends into an assurance of respect and inclusivity.

Nargesh Meerza discussed previously In her paper, she highlighted that a dignitybased construction of equality, however, changed the way the judiciary approaches the problem of equitable distribution The idea of a dignified individual whomshe described as having a “secure sense of identity”, “the satisfaction of basic material needs”, and “a set of empirical qualities having to do with selfcontrol, invulnerability, and selfassuredness”-., provides better direction for fair distribution to ensure this sort of security for every person.

A similar development is taking place in Indian equality jurisprudence As anexample, we analyse the recent judgment of the Supreme Court inThe Court characterised thisindividual grievance as reflective of “the aspirationsof a whole class of persons whose daily engagement with physical disability definestheir continuing quest for dignity”.

It applied the provisions of the RPwD Act to this case which mandates that “the Government shall ensure that the persons withdisabilities (PwD enjoy the right to equality, life with dignity and respect for his orher integrity equally with others”.

The Court first held that the RPwD Act is one of the measures undertaken by the State to fulfil the guarantee of equality under Article 14 and should be applied and interpreted in the “ethos of inclusion and acceptance”.

It then clearly linked dignity to the idea of equality as recognition of the inherentmoral worth of every human by stating that “individual dignity undergirds the RPwD Act.Intrinsic to its realisation is recognising the worth of every person asan equal member of society”.

It went on to use this framework tomake some notable observations— First, it used dignity to promote inclusivenessand indirectly endorsed relationalequalitybecause inclusivityand respect come from acceptance by other humanbeings The judgment is comfortable departing from the conceptualisation ofequalitybound by “sameness” and, instead, embraces one that nurtures diversity.

The Court observed that, Judicial Conceptualisation of Equality Vikash in more detail The Union Public Service Commission (UPSC, an independent government body, conductswritten examinations for appo intment to central government posts The UPSC provideda scribe for candidates with a “benchmark” disability, that is, impairment of 40 per cent or more In this case, the ag grieved party required a scribe but had only 6 per cent demonstrable impairment caused by dysgraphia The UPSC, relying on a positivist approach to the rule, denied his re quest The aggrieved party then lay claim to the equality guarantee on the ground that the denial of a scribe was insensitive to the nature of his disability and disallowed him a fair chance at the exam The Supreme Court accepted this relatively straightforwar d claim and used it as an opportunity to address the equality issue in a more nu anced way using the concept of dignity.

The Value of Dignity in Equality Jurisprudence Problems with the Dignity Narrative

The RPwD Act is fundamentally premisedon the recognition that there are manyways to be, none more “normal” or “better” than the other It seeks to provide thedisabled a sense of comfort and empowerment in their difference the RPwD Act... aims to provide them an even platform tothrive, to flourish and offer their uniquecontribution to the world. The Act tells them that they belong, that they matter, that they are assets, not liabilities andthat they make us stronger, not weaker.

Second, it widened the scope of duties of the State in realising the goal of equalityas recognition of inherent moral worth byadopting the principle of reasonableaccommodation The Court stated that “in order to enable persons with disabilitiesto lead a life ofThus, the Court moved from a positivistic ruleled legal framework to a valueled solutioncentric demandfrom the executive.

Third, it changed the way we engage with questions of inequality fromcomparative terms and judicial tests to identify the nature of hurt anddiscriminationThe Court”-.s analysisbegins with trying to identifythe particulartype of barrier that is faced by persons with disabilities instead of generalisingproblems ofaccessfaced by marginalised groups.

The judgment enabled the law tochange its view of physical impairmentfrom a medical perspective to a socialperspective,by encouraging an intersectional approach to addressing problems ofinequality and demonstraing an understanding of the various marginalising factorsthat a person faces and their varying contribution to that person”s marginalisation.

Despite its contribution to equalityjurisprudence, this rise of the dignity narrative in the Indian human rights jurisprudence has its drawbacks The assumption thatdignity is the foundation for equality and other basic human rights is itself underequal dignity and worth, it is not enough to mandate that discriminationagainst them is impermissible That is necessary, but not sufficient We mustequally ensure thatwe provide them the additional support and facilities that are necessary for them to offset the impact of their disability”.

Further, there is a concern, both in Indiaand elsewhere,thatthe Bombay High Cour t accepted governmentrestrictions on erotic dancers against their wishes on the ground that such regulationhelps protect the “dignity.” of women.

There is considerable development in Indianjurisprudence recognising thatgovernment regulation of this kind endorses statepaternalism based on gender stereotypes.

However, the State objective of regulatingwomen”s autonomy on the plank of dignity remains unquestioned.

Similarly, the Karnataka High Court inIn other words, the hijab was’s een to be a practice derogatory Judicial Conceptualisation of Equality equality, which itself is a developing concept in jurisprudence, may just be replaced with the equally amorphous concept of dignity Its interpretation and application would still depend on the personal experiences and understandings of the judges concerned The vagueness of dignity can, and has, prov ided a foil for collective morality to drown individual autonomy For example, in the Indian Hotel and Restaurant Association vState of Maharashtra, Resham vState of Karnataka recently affirmed that the pres cription of uniforms in educational institutions that prevents Muslim women from wearing the hijab to be in pursuance of the object of protecting the dignity of women.

Dignity as a Search for an Unenumerated Moral Value

However,However, theequation ofpractices in a secure, majoritarian, and wellaccepted religion like Hinduism in India to similar practices in Islam ignores the insecurity of minoritiesand the proportionate significance of a religious symbol to the identity of thosepractising a minority religionA Muslimwoman may be treated unequally by herreligious community but may also be treated unequally by the larger citizenry onaccount of her being a Muslim—ultimately causing a dichotomy between herinterests as a woman and as a Muslim In such cases, both equalityand dignityrequire deeper and more nuanced analysisand dignity, on its own, does not helpunderstand intersectional discrimination Fu rther, taking away a woman”s livelihoodor accessto education does not in any way further her dignity or equal treatment.

Nonetheless, the dignity narrative enriches the understanding of equalitywhentaken to be an enabler of agency.

Prima facie, this set of facts appe ars to be similar to Sabarimala where a religious rule selectively applicable to women (like the hijab under Islam was dismantled to protect womens” di gnity In fact, the Karnataka High Court relied on Sabarimala to observe that religious practi ces have been used to continue practices derogatory to the dignity ofpersons Sabarimala allowed women more choice and autonomy than they had previously while Resham and ICRA diminished the choices previo usly available to women Women who hold the religious belief thatthey are not allowed in the Sabarimala temple can choose not togo and those who believe theyare entitled to enter, may enter the temple However, in the case of banning dance bars., those women that wish to continue performing no longer have the choice to do that and in the case of banning the hijab in educational institutions., women who want to wear the hija b no longer have that choice This is, of course, assuming that these choices are free choices The question of whether such choices can ever be free is one that neither of these decisions engages withand hence doesnot formthe basis of these judgments Rather, theyare based more on a paternalistic view where majoritarian opin ions supposedly make the correct and more dignified choice for these women instead of enabling the women to make the choice for themselves Moreover, such arguments also have to be contextualised in the light of majority and minority religious statusThe judgment in Resham equates the purdah in some Hindu cultures to the hijab, asserting that the removal of both systems is integral to the emancipation of women—an appl ication of “sameness” equality This is well illustrated in the case of Joseph Shine

The fivejudge bench in this case found the law to be unconstitutional on theground that it violatedthe right to equalityThe judgesemployed various strands ofreasoning, most strongly that the lawrobbed women of their dignity as humanbeings with agency and thus violatedthe principle of equality.

The constitutional challenge to adultery was raised before, inandJudicial Conceptualisation of Equality Union of India, Sowmithri Vishnu vUnion of India VRevathi vUnion of India, in 1988. In these cases, Section 497 was upheld The fact that women could not be proceeded against under Section 497 was seen as a permissible exception in favour of women as enabled by Article 15(3 of the Constitution However, in Shine, the Supreme Court distinguished between laws that attempt to correct historical injustices or attempt to place women on an equal footing by recognising their social disadvantages and laws that perpetuate patriarchyby espousing romanticpaternalism Section 497 was crafted unde r the belief that women were incapable of independent decisions, were prone to seduction by men and hence could not be held accountable for their decision to engage in sexual activity outside their marriage The Supreme Court clearly held that such a notion is one of romantic paternalism that does little to help women realise their rights as equal

While affirmative action thatenables a disadvantaged group toempower itselfaffords its subject human dignity, theNonetheless, Justice Mishra eventually struck it downon the ground of being “manifestly arbitrary”.

Justice Nariman explored whether the provision actuallyachievedits objective, thatis, the preservation of marriage, by conducting anexamination akin to the second rung of the Classification Test and found that it didnot.

Justice Indu Malhotra resorted to the comfort of the Classification Testandfound that the classificationbetween men and women being treated differently interms of who can prosecute and who can be prosecuted against, is “no longer” relevant and therefore the law is in violation of Article 14.

Her reasoning indicatedthat the treatment of women being subordinate to men in the manner that Section 497 endorsed was justified atsome point in the pastand evensuggested thatgender equality itself is a “later development”.

This approach views equality asresponsive to evolving societal norms rather than constant objective principles.

Justice Chandrachud explored the nature of discrimination perpetuated by Section 497 most closely through a thoroughanalysis of the social and historicalcontext within which the provision operated.

He recognised that Section 497 views people asgenderedcitizensand was the only judge on the bench to explicitlyrecognise this as a form of discrimination.

He was also the onlyjudge to test theprovision against the guarante e provided in Article 15 against discrimination on thebasis of sex Without displacing any existing tests, he does appear to offer anprotection of a disadvantaged group by denying it agency robs the subject of dignity.

Despite using different tests and judicial tools, nearly all the judges drew a linkbetween the violation of equality by Section 497 to the dignity of women asindividuals More specifically, Justice Chandrachud implied that Section 497”s denial of a woman”s ability to make choices within marriage while affording thesame to a man, offends her dignity and thus, breaches the guarantee of equality.

The fact that no such provision existed penalising the extramarital sexual activity ofmen with other “unattached” women was not Judicial Conceptualisation of Equality the reason Section 497 violated equality., but an indication or symptom of the deeper social malaise of patriarchal discriminationwhich constituted the actual inequalityThis is a good example of how tests can be used to diagnose inequality but do not confront the inequality itself Limiting oneself to observing that no equivalent law for men exists or that women are not prosecuted under this law while men are, can lead to facile solutions like making the law equally applicable to both men and women, when, in fact, the problem is much deeper However, nearly all the judges felt the need to declare the law arbitrary in order to find it inconsistentwith Article 14. This is problematic because the nature of injury causing the violation of equality is crucial to understanding what equality is Arbitrariness or capricious unpredictable and baselessactions forma different mischief/injury than the perpetration ofde liberate and systematic discrimination In any event, like in Vikash, weaving dignity into equality jurisprudence can afford the judiciary precious respite from rest rictive tests Its value is best appreciated by contrasting the above judicial reasoning with cases where it was not employed For instance, the absence ofdignity jurisprudence is felt deeply in Sarkar, where legislation providing for shorter trials for certain classes of criminal offenders without all the protective features of a fair trial available to others was challenged as violating the right to equalityWhile describing the inadequacyof the Classification Test, Justice Bose considered the hypothetical scenario of a law that all accused persons who cannot pass a particular intelligen ce test will be tried summarily so that the trial process would be simpler and commensurate with their intelligence He noted, “here is classification It is scientif ic and systematic. There isno question of-.

Conclusion

But what would be the true basis of the decision.? Surely simply this that the judgeswould not consider that fair and properThe emerging dignity jurisprudence would have provided an avenue for Justice Bose toarticulate why thiswas not “fairand proper” by considering the impact suchlegislation has on the dignity of the individual While dignity jurisprudence holdscertain moral appeal, it remains vague and undefined.

Ultimately, the search for the elusive but visceral element of “justness” in the visualisation of equality incontinues to this day, as can be seen fromJustice Chandrachud”s assertionthat “justness postulates equality” inThe searchfor equality is deeply connected to the meaning of civilisation itself.

Equality operates on various planes asourdiscussion shows Within a constitutionaldemocracy, questions of equality arise both within and outside the constitutionalframework Asa result, the Constitution not only influences other structures, such asreligion, in society but is also in a constant dynamicrelationship with such otherstructures While the judiciary is called upon to address these questions from time totime, itis not always equipped tofindthe right answers given the limited frameworkof its operation.

There is inconsistency in the judicial conceptualisation of equality, often withinthe same case.

This may be seen as the result of the continuing development of the concept and the crafting of constitutional concepts by discrete individuals thatis atodds with the idea of the judiciary being a monolithic whole.

In a positive development, courts are increasingly analysing the nature of bias andprejudice that fuel existing discriminatorypractices rather than relying on superficial ”. Sarkar Shine.

Despite these welcome developments, courtscontinue to be trapped in the dogmaof equality as “sameness”. One glaring example is in the— Judicial Conceptualisation of Equality Rajbala vState of Haryana, where the Supreme Court turned a blind eye to the social realities of citizens It upheld the requirement of educ ational and other qualif ications affordable to the privileged for anelected post., insensitive to the fact that these are often denied to certain groups due to reasons beyond their control Another example is in Resham, where the Karnataka High Court found the aspect of literal uniformity to be the equalising factor in schooluniforms, without understanding the issue of denial of education based on clothing When confronted with the demand for a reasonable accommodation as established in Vikash, the Court stuck to its limited interpretation of equality through formal classificationby observing that if the hijab were allowed, “[t]here shall be two catego ries of girl students, namely, those who wear the uniform with hijab and those who do it without”. While one hopes the appeal at the Supreme Court will explore the conceptual basis of equalityin this instance, it is clear that the judiciary is still in the process of developing a concrete understanding of equality that che cks against individual prejudice.

Notes & References

4. Article 17, which prohibits the practice of untouchability, forms a part of the broad right to equality in the Consti tution However, itfocuses on a sp ecific type of discrimination.

5. This is because the purpose of the law and the means to achieve it are within the exclusive domain of the legislature The doctrine of separation of powers requires that the judiciary does not step into this role.

6. See AnujGarg vHotel Association, (2008 SCC 1; Suresh Kumar Koushal vNaz Foundation, (2014 SCC; Dr Subramanian Swamy vCBI, 2005 CriLJ 1413; Raag Yadava. 2010. “Taking Rights Seriously … The Supreme Court on Strict Scrutiny”, National Law School of India Review, 22(2: 147-169. the nature of things, nonrational, not done or acting according to reason orjudgment., depending on will alone”.

7. Sharma Transport vGovernment of Andhra Pradesh, (2002 SCC 8, para 25.

8. Shayara Bano vUnion of India, (2017 SCC, para 101.

9. For a critique of the Classification Test, see Tarunabh Khaitan. 2015. “Equality: Legislative Review Under Article 14”, in Sujit Choudhry et al. (eds., The Oxford Handbook of Indian Constitutional Law, pp. 699-719, draft version of the chapter available online at https://papersssrncom/sol3/paperscfm?abs tract_id=2605395 (accessed on 22-. April 2022. For a critique of the Arbitrariness Test, s ee Gautam Bhatia. 2017. “Equal Moral Membership: Naz Foundation and the Refashioning of Equa lity under a Transformative Constitution”, Indian Law Review, 1(2:, draft version of the article available online at https://papersssrncom/sol3/paperscfm?abstract_id=2980862 (accessed on 22 April 2022; Shankar Narayanan. 2017. “Rethi nking “NonArbitrariness””, NLUD Student Law Journal, 4: 133- 143, available online at https://vidhilegalpolicyin/wpcontent/ uploads/-.2019/05/Shankar_Article_NLUDpdf.

10. For example, there is a body of opinion that the arbitrariness is a fuller version of the rationality prong of the Classification Te st, obfuscating the difference between the two; see Narayanan, “Rethinking “NonArbitrariness””. Another example of inconsistenc y is the uncertainty regarding whether the Arbitrariness Test is alone enough to strike down a legislation While the Supreme Court in Rajbala vState of Haryana, Writ Petition (Civil No. 71 of 2015, (decided by the Supreme Court on 10 December 2015, in para 69 held that a legislation cannot be struck down on the ground of arbitrariness alone, the Supreme Court in Joseph Shine vUnion of India, (2019 3 SCC 39, (decided by the Supreme Court on 27 September 2018, held that manifest arbitrariness is a sufficient ground to stri ke down legislation as unconstitutional. enforced as a fundamental right (and has often been equated to a formal legalequality, its scope and contours are influenced by other provisionsin the Constitutionthat indicate the constitutional value thatour evolving nation wishes toespouse.

11. AIR 1993 SC 477, para 4. 1992 Supp SCC 217, paras 412, 420-421, 480.

12. See Consumer Education and Research Centre vUnion of India, AIR 1995 SC 922 for judicial application of these principles.

13. 1995 SCC (3, para In this case, a legislat ion providing for shorter trials for certain classes of criminal offenders without all the protective features of a fair trial available to others, was challenged as violating the right to equality.

14. Sarkar, para 83.

15. Many philosophers and social scientists concede that concept of equalityis vague and requires contextualisation to bring practical meaning to the theory See Amartya Sen, “Equality of What?”, at The Tanner Lecture on Human Values, Stanfo rd University (22 May 1979, available online at https://wwwophiorguk/wpcontent/uploads/Se n-1979_EqualityofWhatpdf (accessed on 22 April 2022; Stefan Gosepath. 15. “The Principles and the Presumpti on of Equality”, in Carina Fourie et al (ed., Social Equality: On what it Means to be Equals, p. 167. Oxford University Press, available online at https://coreacuk/do wnload/pdf/187116187.pdf (accessed on 22 April 2022; Williams Bernard. 1973. The Idea of Equality Cambridge University Press. takes on the flavour of the historical andsocial context it is championed inForinstance, “equality” was a cornerstone of the French Revolution in 1789 against theprevalent socioeconomic structures of feudalism and class atrocities of 17th century Europe The slogan of this revolution, “liberty-., equality, fraternity”, however, took on a life of its own and even finds mention inour Constitution despite it being framedunder very different circumstances In order to encapsulate how this term maintains a basic consistency in its meaning across contexts, it is crucial to be aware of itspower to evoke a deep sense of justice and moralitythat can be intrinsically graspedby humankind in general Nonetheless, to guarantee it as a right in a moderndemocracy, the judiciary has to finda way to make it tangible and enforceable whilealso attempting to uphold its moral value.

16. For a historical account of the evolution of the concept and its interplay with justice in western thought, see George LAbernethy. 1959. The Idea of Equality: An Anthology John Knox Press, available online at https://archi veorg/details/ideaofequalityan 00aber/page/n5/mode/2up (accessed on 22 April 2022. See also Stanley IBenn. “Egalitarianism and the Equal Consideration of Interests”, in Peter Vallentyne (ed., Justice and Equality, p. 23. New York: Routledge.

17. Aristotle, Nicomachean Ethics, 5.1131a10…B15 translated by WD. Ross. 1925. Oxford University Press For a modern application of the theory, Kenneth IWi nston. 1974. “On Treating Like Cases Alike”, California Law Review, 62(1: 1-39.

18. For a critique of the principle of treating li ke cases alike to ensure equality, see Peter Westen. 1982. “The Empty Idea of Equality”, Harvard Law Review, 95(3: 7-596.

19. Richard Wollheim and Isiah Berlin. 1955. “Equality”, Proceedings of the Aristotelian Society, 56: 284.

20. Immanuel Kant. 1797. Reprinted 2017. The Metaphysics of Morals Oxford University Press, p. 230. Kant”s theories have thei r limitations, the primary one bein g that intrinsic moral value is ascribed only to individuals ca pable of making dutiful decision’sFor an evolution of Kantian ethics and a modern version applicable to our discussion, see Ben Bradley. 2006. “Two Concepts of Intrinsic Value”, Ethical Theory and Modern Practice, 9(2: 0. the widely heldconception of substantive, universal, moral equality—the principlethat human beings, despite their differences, are regardedas one another”s equals.

21. Ronald Dworkin. 2000. Sovereign Virtue … The Theory and Practice of Equality, Harvard University Press, p. 4-7; Ian Carter. 2011. “Respect and the Basis of Equality”, Ethics, 121(3: 538- 571; Will Kymlicka. 1990. “Two Theories of Justice”, Inquiry, 33(1:

22. This thought process also has a basis in Ch ristian religious thought For a description of the various bodies of thought that come to a simi lar conclusion, see Nicholas Kirby. 2017. “Two Concepts of Basic Equality”, Res Publica, 24: 299-302. See also Catharine AMacKinnon. 2020. “Equality”, Daedalus 149(1: 213-221.

23. The movement consisted of various subcult ures and was led by numero us poets and thinkers throughout the subcontinent, but a unifying tr end was the rejection of caste hierarchies and respect for individual human worth on the ground of devotion to a pers onal god—where devotion is an equalising factor See John Keune. 2021. Shared Devotion, Shared Food, Oxford University Press; Walter Fernandes. 1992. “Bhakti and Liberation Theology for India”, in Felix Wilfred (ed., Leave the Temple: Indian Paths to Human Liberation, pp. 47-63. Wipf and Stock; Rekha Pande. 1987. “The Bhakti Moveme nt—An Interpretation”, Proceedings of the Indian History Congress, 48: 214-221; Divya Jyoti. 2018. “The Problem of Ca ste: Bhakti and Equality in Kabir”, Sambh a, 2(1: 125-145.

24. Basava advocated for equal access to spir ituality, a privilege in the caste system which systematically denied this basic good through ga tekeeping by higher castes Along with this, he evolved nuanced arguments for gend er equality and dignity of labo ur based on the moral worth of every individual regardless of the nature of wo rk they did (which at the time was the primary marker of social status, equitabl e access to means of generating mate rial wealth (a type of equality of opportunity in western thought., and distributi on of wealth (equality of outcome See Prakash SDesai. 2017. “Exploring the Mo dern in Medieval: Political Idea’s of Basava”, in Himanshu Roy and Mahendra Prasad Singh (eds.-., Indian Political Thought, pp. 67-74. Pearson; KIshwaran. 1981. “Bhakti Tradition and Modernization: The Case of Lingayatism”, in Jayant Lele (ed., Tradition and Modernity in Bhakti Movements, p. 72-82. Brill Publis hing; Dr Nalini AWaghmare. 2013. “Basaveshwara and Dr BR. Ambedk ar”s Views on Eradicating Untouchability”, Basava Journal, 42(2:, available online at http://210.212.169.38/xmlui/bitstrea m/handle/123456789/4045/Basaveshwara%20and%20 Dr.%20B%20R%20Ambedkar%27s% 20views%20on%20eradicating %20the%20untouchabilitypdf?sequence=1&isAllowed=y (a ccessed on 24 April 2022. For a translation of some of his works, see Githa Hariharan. 2018. “The Spark in their Words”, Indian Cultural Forum, 20 April, available online at https://indianculturalforumin/2018/04/20/thesparkintheirwords/ (accessed on 24 April 2022. and the Sudramunis25 in modernday Odisha This version of equality, therefore, hasan intrinsic and universal human value.

1. Does it meanthey are all entitled to the same benefits and equal distribution ofmaterial goods? Not exactly The conception of “simple” equality., where everyone getsthe same level of materialbenefits, is generally rejected as untenable and is blind to differences that exist between people because the same benefits could still result in disparate impacts owing to the differential requirements ofpeople Nonetheless, we strive to achieve “distributive justice”—a fair distribution of benefits such as wealth, goods, and services amongst all while trying to achieve “equality ofoutcome”. Models of distributive justice usually combine this with the more achievable ideal of “equality of opportunity”

2. Does it mean that the previous principle of like shouldbe treated alike is not valid? No, but the principle should be utilised in a manner that focuses on the inherent equality of persons rather than mere consistency in treatment Recognising thathuman beings are all equal does not mean treating them uniformly in any respects other than those in which they clearlyhave a moral claim to be treated alike Thisunderstanding requires

25. They emphasised equality in access to spir itual and intellectual wealth, by translating religious texts into accessible languages and encouraging relational equality through conscious changes in language and terms of address See Basanta Kumar Malik. 2007. “Emergence of The Sudra to Subaltern Consciousness in Medi eval Orissa (CA.D. 1450-1600”, Proceedings of the Indian History Congress, 68(1:; Dr Rashmi Prava Panda. 2019. “Contributions of Panchasakha Literature to the SocioCultural Life of Odisha”, The Journey of Indian Languages: Perspectives on Culture and Society, 2: 303-308, available online at http://gyansampadabaoueduin:8080/js pui/bitstream/123456789/507/1/English%20Volume-2- 303-308.pdf (accessed on 24 April 2022.

26. A wellaccepted normative theory in this cont ext is the Rawlsian Diffe rence Principle found in John Rawls. 1972. A Theory of Justice Oxford University Press According to Rawls,

1. Each person has an equal claim to a fully adeq uate scheme of equal basi c rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be gu aranteed their fair value.

2. Social and economic inequalities are to sati sfy two conditions: (a They are to be attached to positions and offices open to all under conditio ns of fair equality of opportunity; and (b, they are to be to the greate st benefit of the least advantaged members of society”. something more than uniform treatment It forces us to ask what a moralclaim is and whether to impose positive duties on the State to removematerialor social differences thatare at odds with our inherent moralequality.

3. Does it imply relational equality? Yes, there is a more recent understanding of equality that asserts that equal moral worth is best established when persons receive dignity and respect from their peerscertain political goods such as voting rights, the right to hold public office, speak freely, etc., are crucial for every individual toparticipate equally, and therefore be accorded a respectable and equal societal statusequal nationpresentshelps contextualise the nature of the rights guaranteed.

27. David Miller. 1998. “Equality and Justice”, in Andr ew Mason (ed., In Ideals of Equality, p. 32. Blackwell; Carina Fourie. 2012. “What is Social Equality? An Analysis of Status Equality as a Strongly Egalitarian Ideal”, Res Publica, 18: 107-120, available online at https://coreacuk/download/pdf/ 159153218.pdf (accessed on 24 April 2022.

28. Rawls, p. 53.

29. Elizabeth SAnderson. 1999. “What is the Point of Equality?”, Ethics, 109(2: -337, available online at https://wwwphilosophyrutgersedu/joomlat oolsfiles/docmanfiles/4ElizabethAndersonpdf (accessed on 24 April 2022; Niko Ko lodny. 2014. “Rule Over None II: Social Equality and the Justification of Democracy”, Philosophy and Public Affairs, 42(4:, available online at https://wwwceuedu/sites/defau lt/files/attachment/event/12567/kolodnyruleovernonesocialequalityandjustificati ondemocracypdf (access ed on 24 April 2022.

30. Gideon Elford. 2017. “Survey Article: Relational Equality and Distribution-.”, Journal of Political Philosophy, 25(4: e80-e99.

31. Indian Young Lawyers Association vThe State of Kerala, (2019 SCC 1, para 20 states that “the task which the framers assumed wa’s infinitely more sensitive Th ey took upon themselves above all, the task to transform Indian society by reme dying centuries of discri mination against Dalits, women and the marginalised They sought to provid e them a voice by creating a culture of rights and a political environment to a ssert freedom Above all, placing those who were denuded of their human rights before the ad vent of the Constitutionwhether in the veneer of caste, patriarchy or otherwisewere tobe placed in control of thei r own destinies by the assurance of the equal protection of law Fundamental to their vision was the ability of the Constitution to pursue a social transformation Intrinsic to the social transformation is the ro le of each individual citizen in securing justice, liberty, equality and fraternity in all its dimensions”.

32. Courts have interpreted Article 14 to mean mu ch more but we are, for now, stating the bare textual meaning of it This conc ept merely means the law will appl y equally to everyone It does not necessarily mean the State will actively elim inate unfair divisions, discrimination, etc.

33. 1974 4 SCC 3.

34. Catherine AMacKinnon. 2006. “Sex Equality under the Cons titution of India: Problems, Prospects, and “Personal Laws””, International Journal of Constitutional Law, 4(2:, available online at https://academicoupcom/icon/articlepdf/4/2/181/2141343/mol001.pdf (accessed on 24 April 2022; Shivam. 2016. “Arbitrariness Analysis under Article 14 with Special Reference to Review of Primary Legislation”, ILI Law Review, Summer Issue: 184, available online at https://wwwiliacin/pdf/paper11. pdf (accessed on 24 April 2022.

35. Royappa, para 85.

36. Sarkar, para 29.

37. Justice BK. Mukherjea in Sarkar mentioned, while fashioning Article 14 in the mould of the Equal Protection Clause in the American Constitu tion, that “the entire problem under the equal protection clause is one of classi fication or of drawing lines”. See Sarkar, para 44.

38. This was the deciding factor for the Supr eme Court while determining the validity of an administrative action in DS. Nakara vUnion of India, AIR 1983 SC 130. The logic was extended to the assessment of legislations by the Supreme Court in AL. Kalra vProject and Equipment Corporation of India Limited, (1984 SCC 316 where in para 19 it held that, “[o]ne need not confine the denialof equality to a comparative evalua tion between two persons an action per se arbitrary itself de nies equal protection by law”.

39. Siddharth RGupta and Kerti Sharma. 2021. “A rticle 14 and Arbitrariness vis-à-vis Legislative Action”, SCC Online Blog, 11 October, available online at https://wwwscconlinecom/blog/post/2021/ 10/11/article-14-andarbitrarinessvisavislegislativeaction/ (accessed on 17 April 2022; Narayanan, p. 135.

40. AIR 1967 SC 1427. In this case, the court was tasked with determining whether certain recruitment rules were in viol ation of the Equality Code.

41. Jaisinghani, para 14.

42. Jaisinghani, para 14. Among other sources, the Court quoted the American judgment in United States vWunderlich, 342 US. 98 that “law has reached its finest moments when it has freed man from the unlimited discretion of some ruler... where discretion is absolute, man has always suffered”.

43. AIR 1968 SC 346, para 15.

44. AIR 1975 SC 865, para 343.

45. MP. Singh. 1987. “The Consti tutional Principle of Reasonableness”, SCC Journal, 3: 31-48; Gautam Bhatia. 2019. “Equality Before Law: Naz Foundation and Equal Moral Membership”, The Transformative Constitution, p. 48. Harper Collins.

46. 2021 SCC OnLine SC 463, para 22 states that “[a]ny encroachment by the legislature would amount to violating the principles of separation of powers, judicial independence and the Rule of law Independence of courts from the executive and the legislature is fundamental to the Rule of law and one of the basic tenets of the Indian Constitution Separati on of powers between the three organs, ie., the legislature, the executive and the judiciary, is a consequence of the principles of equality as enshrined in Arti cle 14 of the Constitution”. of the right toequality under Article 14 as Article 14 is grounded in the Rule of Law Thus, it did not rely on either judicial test to assess the fact situation before it, taking instead a principled approach by linking the concept of the doctrine ofseparation ofpowers directlyto the achievement of equality.

47. The judgment does employ the Cl assification Test to so me extent to assess the permissibility of an age limit for judges but the main aspect of executiv e interference in the judiciary is not subject to any judicial test.

48. Sometimes, the term “discrim ination” is used by the judiciar y loosely to mean other kinds of injustices For example, in Union of India vTulsiram Patel, (1985 SCC, the Supreme Court equated it to arbitrariness In para 95, it described discrimination to mean “violation of a rule of natural justice results in arbitrarine ss which is the same as discrimination; where discrimination is the result of state action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a state action is a violation of Article 14”. However, in this chapter, discrimination means the deli berate othering of a person due to social stigmas.

49. For example, see Navtej Singh Johar vUnion of India, (2018 SCC, decided by the Supreme Court on 6 September 2018, para 3 where the Supreme Court was face d with legislation discriminatory tononheterosexual orientations and observed, … “Theideals of individual autonomy and liberty, equality for all sans discrimination of any ki nd, recognition of identity with dignity and privacy of human beings has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigi d stereotypes, parochial mindset and bigoted perceptions So cial exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals. We have to bid adieu to the perceptions, stereotypes and prejud ices deeply ingrained in the soci etal mindset so as to usher in inclusivity in all spheres and empower all citize ns alike without any kind of alienation and discrimination”. Av ailable online at https://mainscigovin/suprem ecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf (accessed on 19 April 2022.

50. Article 15 (1, Cons titution of India, 1950.

51. Article 15(2, Consti tution of India, 1950.

52. Shreya Atrey. 2016. “Through the Looking Gla ss of Intersectionality: Making Sense of Indian DiscriminationJurisprud ence under Article 15”, The Equal Right Review, 16: 160-185, available online at https://wwwequalrightst rustorg/ertdocumentbank/Thro ugh%20the%20Looking%20Glass% 20of%20Intersectionality%20M aking%20Sense%20of%20Indian% 20Discrimination%20Jurispr udence%20under%20Article%2015.pd f (accessed on 19 April 2022.

53. Article 15 is an instance and particular applicat ion of the right of equality provided for in Article

14. While Article 14 guarantees the general right, Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances See Gazula Dasaratha Rama Rao vState of Andhra Pradesh, AIR 1961 SC 564.

54. Writ Petition (Civil No. 400 of 2012, decided by the Suprem e Court on 15 April 2015, para 59- 61, available online at https: //mainscigovin/jonew/judis/41411.pd f (accessed on 20-. April 2022.

55. For example, see Danial Latifi vUnion of India, (2001 SCC In this case, the discrimination in question wa’s against Muslim women on accoun t of them being both Muslim and women. the guarantee under Article 14.

56. Vikash Kumar vUnion Public Service Commission, (2021 SCC 0, para 65 (“ Vikash ”.

57. 2009 SCC OnLine Del 1762, paras 99-104. See Pr itam Baruah. 2009. “Logic and Coherence in Naz Foundation: The Arguments of Nondiscrimination, privacy and dignity”, NUJS Law Review, 2(3:,, available online at https://pape rsssrncom/sol3/paperscfm?abstract_id=1505294 (accessed on 20 April 2022; Khaitan, “Equality”, pp. 424-425.

58. For a more detailed analysis on how these judgments enhanced equality jurisprudence, read Gauri Pillai. 2019. “Naz to Navtej: Navi gating Notions of Equality”, NUJS Law Review, 12(3-4, available online at http://nujslawreviewo rg/wpcontent/uploads/2020/02/123-4-GauriPillaipdf (accessed on 20 April 2022.

59. Shreya Atrey and Gauri Pillai. 2021. “A feminist rewriting of Air India v Nergesh Meerza AIR 1981 SC 1829: proposal for a test of discrimination un der Article 15(1”, Indian Law Review, 5(3:; Aparajita Anand. 2020. “The Curious Case of Anti Stereotyping … A Form of Stereotyping in Itself?”, White Black Legal, 1(8: 8-10, available online at https://wwwwhiteblacklegalcoin/wpcontent/uploads/2020/02/Vol-1-Issue-8-APARAJITAANAND pdf (accessed on 20 Ap ril 2022; Gautam Bhatia. “S ex Discrimination and the Constitution … VI: The Discontent’s of Air India v Nargesh Mirza”, Indian Constitutional Law and Philosophy, 12 August, available online at //indco nlawphilwordpresscom/2015/08/12/sexdiscriminationandtheconstitutionvithediscontentsofairindiavnargeshmirza/ (accessed on 20 April 2022.

60. (1981 SCC 5. pregnant women accepting the rationale that women”-.s presence at the home afterbecoming a mother was crucial to the stability of the family while no similar burdenwas placedonmen The Court upheld the gender stereotype that the burden ofbringing up children fell on women alone This is an example of how the Classification Test was used tofit discriminatorypractices into existing socialhierarchies rather thanchallenging them.

61. Anuj Garg, paras 42-51: See also Githa Hariharan vReserve Bank of India, AIR 1999 SC 1149.

62. Indian Young Lawyers Association vThe State of Kerala, (2019 11 SCC 1.

63. Other examples include the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act of 2006 and Transgender Pe rsons (Protection of Rights Act, 19.

64. 1995 Supp (4 SCC 469.

65. Ingale, para 6.

66. Ingale, para 11.

67. Ingale, para 10.

68. Vikash, para 60 states that “in seeking to project these values as inalienable rights of the disabled, the RPwD Act, 2016 travels beyond being merely a charter of nondiscrimination It travels beyond imposing restraints on discrimi nation against the disabled”.

69. Vikash, para 60 also states, “In order to enable persons with disabiliti es to lead a life of equal dignity and worth, it is not enoughto mandate that discriminati on against them is impermis sible That is necessary, but not sufficient We must equally ensure, as a soci ety, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability.”

70. Vikash, para 52 states that “the RPwDAct 2016 goes beyond a formal guarantee of nondiscrimination by casting affirmative duties and obligations on government to protect the rights recognised ”.

71. Denise Réaume. 2013. “Dignity, Equa lity, and Comparison”, in Deborah Hellman et al. (eds., Philosophical Foundations of Discrimination Law, p. 6. Oxford University Press, penultimate draft available online at https://pa persssrncom/sol3/paperscfm?a bstract_id=2307169 (accessed on 20 April 2022.

72. For example, Article 14(4 of the Constitution enables affirmative action for employment in public posts for classes that are “not adequately represented in the services under the State”.

73. (2010 SCC, para 37.

74. Government of Andhra Pradesh vP.BVijayakumar, AIR 1995 SC 1648, para 14. See also Yusuf Abdul Aziz vState of Bombay, 1954 SCR 930; GM. Southern Railway vRangachari, AIR 1962 SC 36; MR. Balaji vState of Mysore, AIR 1963 SC 649; Triloki Nath vState of Jammu and Kashmir, AIR 1969 SC 1; State of Andhra Pradesh vU.SV. Balram, (1972 SCC 0.

75. MacKinnon, “Equality”.

76. The majority of a sevenjudge bench of the Supreme Court, in State of Kerala vN.MThomas, (1976 SCC 10, held that Articles 15(4 and Ar ticle 16(4 are not exceptions to Articles 1 and 16(1 respectively See also Dr Pradeep Jain vUnion of India (1984 SCC, para and more recently BK. Pavitra vUnion of India, (2019 SCC, para 112, where the Supreme Court held: “For inequality to be truly effectiv e or substantive, the principle must recognise existing inequalities in society to overcome them Reservations are, thus, not an exception to the rule of equality of opportunity They are rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born”.

77. (2017 SCC 50. In this case, a central body that conducts examinations todetermine eligibility for the post of teachers prescribed a minimum pass mark but allowed for state governments to relax the pass mark for certain backward’s sections, Scheduled Castes, and Scheduled Tribes according to that state government”s “extant” policy When the Ra jasthan government allowed for relaxation of the pass mark, the contention raised by the general ca tegory candidates was that this was invalid because the Rajasthan governmentdid not have any applicabl e existing reservation policy at the time and there was, thus, no. “extant” policy The Supreme Court rejected this argument finding it to be against the general spirit of affirmative action to achieve equality.

78. Sankhala, para 67.

79. The Constitution of South Af rica recognises “Human dignity” and “the achievement of equality” as founding values under Clause 1 and dignity is one of the basic rights protected as a part of the bill of rights under Clause 7. used dignity to interpret fundamental rights several years ago,80 there is a recentincrease in reliance on dignity asa decisive factor in discerning the contours ofexisting fundamental rights., especially equality Linking dignity and equality, the Supreme Court observedin81 This flows from the theory that dignity is a foundational value from which humanrights arise.

80. See DK. Basu vState of West Bengal, AIR 1997 SC 610; Sunil Batra vDelhi Administration, (1978 SCC 9.

81. Sabarimala Case, para 233.

82. This is an extension of the Kantian philosop hy that humans have an inherent moral worth and dignity simply by virtue of being human See Alan Gewirth. 1981. “The Basis and Content of Human Rights”, Human Rights, 23-.: 119. A more nuanced understand ing of “statusdignity” and its basis of a source of human rights can be fo und in Jeremy Waldron. 2013. “Is Dignity the Foundation of Human Rights?”, NYU School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 12-73 available onli ne at https://ssrncom/abstract=2196074 or http://dxdoiorg/10.2139/ssrn.2196074 (accessed on 20 April 2022.

83. Article 1, Universal Declaration of Human Rights, 1948 available online at https://wwwunorg/en/udhrbook/pdf/udhr_b ooklet_en_webpdf (access ed on 20 April 2022.

84. For example, in Valsamma Paul vCochin University, (1996 SCC, para, the Supreme Court observed that, “human rights are derived from the dignity and worth inherent in the human person”. In the landmark case of Maneka Gandhi vUnion of India, para 29, it observed that “fundamental rights represent the basic values cherished by the pe ople of this country since the Vedic times and they are calculated to prot ect the dignity of the individual” and in Common Cause vUnion of India, Writ Petition (Civil Noof S upreme Court of India decided on March 2018, para 86, observed that “dignity is the expression of a basic value accepted in a broad sense by all people, and thus constitutes the fi rst cornerstone in the edifice of human rights Therefore, there is a certain fundamental value to the notion of human dignity, which some would consider a pivotal right deeply rooted in an y notion of justice, fairness, and a society based on basic rights”, available online at https://mainscigovin/supremecourt/2005 /9123/9123_2005_Judgement_09-Mar-2018.pdf (accessed on 20 April 20-.22. More recently, in Sabarimala, in para 192, the Supreme Court observed that “dignity of the individual isthe unwavering premise of the fundamental rights”.

85. See Justice KS. Puttaswamy (Retdv Union of India, Writ Petition (Civil Noof decided by the Supreme Court on 24 August 2017, available online at https://mainscigovin/suprem ecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf (accessed on 25 April 2022.

86. For an assessment on the way the Americ an constitution connects the two principles, see Harvard Law Review. 2019. “Note: Equal DignityHeeding Its Call”, Harvard Law Review, 132: 1323, available online at https://harvardlawrevieworg/2019/02/equaldignityheedingitscall/ (accessed on 20 April 2022.

87. Kant, The Metaphysics of Morals; Waldron, “Is Dignity the Foundation”.

88. Réaume, “Dignity, Equality, and Comparison”.

89. Réaume, “Dignity, Equality, and Comparison” p. 9: “This tend ency to require close likeness between claimant and existing be neficiaries indicates reliance ona background distributive principle that is taken to be cons titutionally acceptable The implica tion of that reference point is often negotiated through the language of compariso n of one group of people to another, rather than through a direct examination of the purpose and criteria for eligibility themselves However, comparison to others should be merely an indire ct means of assessing the claimant according to the relevant criteria for distribution of the bene fit itself This indirect comparison often obscures this central question and usually results in compari ng the claimant to the legislature”s standard of relevance for purposes of eligibility for the disput ed benefit, whatever they may be This amounts to the de facto ratification of that standard without subjecting it to any scrutiny at all.”

90. See Khaitan, “Equality”.

91. Réaume, “Dignity, Equa lity, and Comparison” p. 19-..

92. Vikash Kumar vUnion Public Service Commission, (2021 SCC 0.

93. See Matthew S Smith and Michael Ashley Stei n. 2021. “Vikash Kumar: Dignity and Disability Rights at the Indian Supreme Court”, Oxford Human Rights Hub, 17 December, available online at https://ohrhlawoxacuk/v ikashkumardignityanddisabili tyrightsattheindiansupremecourt/ (accessed on 20 April 2022.

94. Vikash, para 1.

95. Section 3, RPwD Act.

96. Vikash, para 60.

97. Vikash, para 60 … “Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individual.”s dignity and worth is respected”.

98. Vikash, para 55.

99. Vikash, para 67.

100. Vikash, para 43.

101. See Dr Sanjay Jain. 2021. “U SPs of the Supreme Court”s judg ment in Vikash Kumar: Some Reflections”, Bar & Bench, 21 February, available online athttps://wwwbarandbenchcom/columns/uspsoft hesupremecourtsjudgmentinvikashkumarsomereflections (acce ssed on 20 April 2022.

102. Vikash, para 65. question,103 which leaves the exact link between dignity and equality unclear.

103. Conor O” Mahony. 2011. “There Is No Such Thing as a Right to Dignity”, International Journal of Constitutional Law, 10(2:, available online at https://papersssrncom/sol3/paperscfm?abstract_id=1856003; see also Baruah “Logic and Coherence in Naz Foundation-.”..

104. Baruah “Logic and Coherence in Naz Foundation ”; Vikram Aditya Nara yan. 2022. “The Indian Supreme Court”s Use of Dignity in Constituti onal Reasoning”, Chapter 1 in this book.

105. Jeffrey Rosen. 2015. “The Dangers of a Constitutional “Right to Dignity””, The Atlantic, 29 April, available online athttps://.wwwtheatlanticcom/p olitics/archive/2015/04/thedangerousdoctrineofdignity/.391796/ (accessed on 25 April 2022; Christ opher McCrudden. 2008. “Human Dignity and Judicial Interpretation of Human Rights”, The European Journal of Human Rights, 19(4: 55-724, available online at http.://wwwejilorg/pd fs/19/4/1658.pdf (accessed on-. 25 April 2022.

106. 2006 (3 Bom CR 705.

107. The Rules under the Bombay Police Act, 1951, which were used to frame the regulations on dance bars, were passed in the inte rest of public safety and social welfare and to safeguard the dignity of women as well as prevent exploitation of women.

108. See Anuj Garg; Hotel Priya vState of Maharashtra Civil Appeal No. 1459/2022 (Arising out of SLP (C No. 13764 of 2012, Civil Appeal No. 1460/2022 (Arising out of SLP (C No. 15953 of 2012 and Civil Appeal No. 1461/2022 (Arising ou t of SLP (C No. 8992/2013, decided by the Supreme Court on 18 February 2022.

109. Writ Petition No. 2347/2022 decided by the Ka rnataka High Court on 15 March 2022, p. 91 available online at https://timesofindiaindiatimescom/kar natakahijabverdict-2022 /photo/90217078.cms (accessed on 24 April 2022. The rules prescribing the prohib ition of hijabs were put in place in the Government PreUniversity College for Girl’s in Udupi under powers granted by the Karnataka Education Act, 1983. Section 2(gv of this Act provides for promoting “harmony and the spirit of common brotherhood amongst all the people of India transcending reli gious, linguistic and regional or sectional diversitie’s to renounce practices derogato ry to the dignity of women”. to the dignity of women.

110. Resham, pp. 56, 85-86.

111. Resham, p. 124.

112. For example, dignity ha’s been seen to be an enabler of agency in Puttaswamy. v113 again a case involving the dignity ofwomen In this case, the constitutionality of Section 497 of the IPC criminalising adultery114 was challengedbefore the Supreme Court According to Se ction 497, a married man is the victim ofadultery when another man (t he perpetrator has sex withthe victim”s wife withouthis consent The victimcannot proceed against his wife but only against the manwhom she had sex with Noequivalent law exists that criminalises extramarital sexby married men with unmarried women Thislaw was argued to be unconstitutionalon the basis that it espoused the patriarchal notionof women as their husband”s sexual property., whereby, they are treated as incapable of individualsexualagencyonce married.

113. Joseph Shine vUnion of India, (2019 SCC, decided by the Supreme Court on 27 September, 2018, available online at https://mainscigovin/suprem ecourt/2017/32550/32550_2017_Judgement_27-Sep-2018.pdf (accessed on 22 April 2022 “ Shine ”.

114. Section 497, Indian Penal Code, 1860: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexua l intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both In such case the wife shall not be punishable as an abettor.”

115. AIR 1985 SC 1618.

116. AIR 1988 SC 835. citizens.

117. Shine, para 4, 124; Shine, para 93: “The history of Section 497 reve als that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife It was aimed at preventing the woman from exercising her sexual agen cy Thus, Section 497 was never conceived to benefit women In fact, the provis ion is steeped in stereotypes about women and their subordinate role in marriage The patriarcha l underpinnings of the law on adultery become evident when the provision is considered as a whole”.

118. Shine, para 124: “The disadvantage mu st be addressed not by treating a woman as weak but by construing her entitlement to an equal citizenship The former legitimizes patron ising attitudes towards women The latter links true equa lity to the realisation of dignity”.

119. Shine, para 23.

120. Shine, para 81.

121. Shine, para 165: “The said classification is no long er relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone”.

122. Shine, para 166: “law which could have been justified at the time of its enactment with the passage of time may become outdated and discriminatory with the evolution of society and changed circumstances”.

123. Shine, para 166: “A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality”.

124. Shine, para 88.

125. Shine, para 88.

126. Shine, para 89. alternative—“The primary enquiry to be undertaken by the Court towards therealisation of substantive equality is todetermine whether the provision contributesto the subordination of a disadvantaged group of individuals”.. However, heultimately used the testof manifestarbitrariness to strike down the law, finallyequating its patriarchal underpinnings toarbitrariness rather than discrimination..

127. Shine, para 150.

128. Shine, para 152: “The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental righ t to dignity and equality”. favouritism, and yet I can hardly believe that such a law would be allowed to stand.

129. Sarkar, para 87.

130. See Baruah, “Logic and Cohe rence in Naz Foundation”.

131. Sarkar, para 92: “What I am concerned to see is no t whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned la w, contrasted with the ordinary law of the land, as the sort of substantially equal treatment whic h men of resolute minds and unbi ased views can regard as right and proper in a democracy of the kind we have pr oclaimed ourselves to be Such views must take into consideration the practical necessities of government, the ri ght to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, uneq ual in the broad sense in which a democracy would view it”.

132. Shine, para 124.

133. For example, in Ingale, the various meanings of equality—equ ality of opportunity, the dignity of the individual, and relational Equality—are described together. analyses through tests to merely detectthe presence of discrimination Indian courtshave turned tomore fundamental values like constitutional morality., distributivejustice, and, later, dignity, to reach equitable outcomes that focus onequalityas therecognition of the individual worth of individuals It is too simplistic to presumethese various understandings of dignityare clear categories distinct from oneanother In fact, they overlap considerably and a given fact situation can requirejustification from multiple angles to arriveat a conclusion regarding what equalitymay entail.

134. AIR 2016 SC 33. The impugned legislation prohibit ed citizens who did not have a certain level of education, those who had certain ty pes of debts, and those who did not have functional toilets in their home from contesting panchayat elections in Haryana The contention raised was thatthese criteria unfairlydiscriminate against poorerand marginalized citizens who do not possess the economic or social capital to meet these criter ia See Alok Prasanna Kumar. 2015. “The Supreme Court Just Delivered a Deadly Blow to the Idea of Universal Adult Franchise”, The Wire, 10 December, available online at https://thewirein/law/timeforindiasp oortosayfarewelltouniversaladultfranchise (accessed on 20 Apri l 2022; Upendra Baxi. “Supreme Error”, The Indian Express, 24-. December, available online at https://indianexpresscom/a rticle/opinion/columns/supremee rror/ (accessed on 20 April 2022.