CRE213 | Re-imagining Equality under the Indian Constitution

Equality as a concept in recent years has gone through great transformation. In the last decade, Indian constitutional jurisprudence has seen a great expansion of the understanding of equality to include concepts of structural or systemic inequality, dignity, freedom, the concept of reasonable accommodation, positive duties, horizontal application and intersectional discrimination among others. There have also been great strides made in the expansion of sex discrimination to include discrimination on the grounds of gender identity, gender expression and sexual orientation. This course will examine these developments and how our courts have elaborated on them especially with the new emerging litigation and arguments for marriage equality. This will enable a conversation of equality that has the Indian constitutional framework at its core and will examine what the current challenges are and what are the new ideas for understanding equality.

The early debates on equality and social justice in the Indian constitutional context revolved mainly around discrimination on the basis of caste and gender and this important constitutional history cannot be lost. Unfortunately, current conversations around caste have been restricted to debates around reservations. While reservations and affirmative action form an important aspect of equal opportunity under Articles 15 and 16, conversations around the quest for equality on the basis of caste include abolition of untouchability and the social practices of segregation and boycott, prohibition of entry into temples, caste-based atrocities and practices such as manual scavenging. However, conversations around untouchability under Article 17 and its linkages with equality have not been studied in detail. The course will aim to bring these debates which were centre-stage during the drafting of the constitution, to the present times and what learnings do they hold for our understanding of equality. In 2023, while segregation, boycott and untouchability are still present, we are witnessing very different struggles for equality and the course will analyse how our courts respond to these new demands for equal rights within our constitutional structure.

The course seeks to examine for the first time the ideas of equality and non-discrimination under our constitution in a comprehensive and forward-looking manner by discussing case law, comparative materials and theory to give a rich idea of how we can re-imagine equality under our constitution in India today.

This course is a standalone course, and will be a great supplement to the foundational courses on constitutional law. The primary readings are judgements and case law of the Supreme Court and High Courts and secondary readings would be commentaries and articles on the themes. There would also be some comparative case law on equality from other jurisdictions.

The teaching method would be a seminar style discussion, with readings that would be given in advance which would be followed by a discussion in class.