Madras High Court
M. Sameeha Barvin vs The Joint Secretary on 20 December, 2021
WP No. 16953 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.12.2021
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
Writ Petition No. 16953 of 2021
M. Sameeha Barvin
D/o. Mujith
C/o. Mohammed Ghowe
No.36, Eagavalli Amman Koil Street
Thandurai, Pattabiram
Chennai - 600 072 .. Petitioner
Versus
1. The Joint Secretary
Ministry of Youth and Sports
Department of Sports
Government of India
Shastri Bhavan
New Delhi - 110 001
2. The Director General
Sports Authority of India
Government of India
Jawaharlal Nehru Stadium Complex
(East Gate) Lodhi Road
New Delhi - 110 003
3. The Chairman
All India Sports Council of the Deaf
No.1-B, Institutional Area
Near Janata Flats, Sarita Vihar
New Delhi - 110 076
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4. The Secretary
Department of Welfare of Differently Abled Persons
Government of Tamil Nadu
Secretariat, Chennai - 600 009
5. The Principal Secretary
Sports Development Authority of Tamil Nadu
Government of Tamil Nadu
Jawaharlal Nehru Stadium
Periyamet, Chennai - 600 003 .. Respondents
Petition filed under Article 226 of The Constitution of India praying to
issue a Writ of Mandamus directing the third respondent to include the
petitioner's name in the final selection list and send her to participate in the
Fourth World Deaf Athletics Championship, which is scheduled to be conducted
at Lublin, Poland from 23.08.2021 to 28.08.2021.
For Petitioner : Mr. R. Prabhakaran
For Respondents : Mrs. N.K. Nithila Vani
Central Government Standing Counsel for RR1 to 3
Mr. G. Krishnaraja
Government Counsel for RR4 and 5
ORDER
“Disabled women struggle with both the oppression of being
women in male dominated societies and the oppression of being
disabled in societies dominated by the able-bodied”
- Susan Wendell1,
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2.That in effect, it explains the tribulations faced by the petitioner, who
finds it impossible to speak or listen, but able to achieve gold and silver medals
in long jump and high jump at the State and National levels, having been denied
the opportunity of participation in the Fourth World Deaf Athletics
Championship, 2021, held at Lublin, Poland and being able to participate in the
same only on the strength of the interim order dated 13.08.2021, on knocking
the doors of this Court.
3.Women athletes with disabilities, aspiring to high levels of sport
competition often face double discrimination associated with gender and
disability2. Being a woman and also having a disability, survival in the world of
sport is a kind of double jeopardy in the practical sense, where the barriers
faced are not only from the angle of being a woman, but also being disabled,
thereby compounding the problem. Hence, they require more institutional, legal
and societal support to achieve success with specific reference to the world of
sport.
4.The case at hand is not to be viewed as being limited only to the factual
circumstances, in which, the petitioner has approached this Court and the
specific narrow relief sought for thereunder. Rather it brings to light the various
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issues faced by the women with disability in the world of sports. There have
been diverse studies as well as research on the issues or barriers faced by able-
bodied women themselves in sports, which has always been treated as a field
dominated by men both due to stereotyped understanding of physical strength
and attributes as well as the socio-cultural mindset, which itself acts as a barrier
for women to excel in sports. Be that as it may, the cases like the one at hand,
would expose the fact that the generalised issues faced by female athletes are
quite different when compared to athletes, who are female and disabled. It is
significant to note that where the axis of discrimination is not singular, but
plural, multiple, cumulative or intersectional, the same has to be viewed with an
analytical lens in order to understand the problems and barriers faced by such
persons with more than one axis of discrimination which is unique and different
and hence, the redressal of such issues needs a more holistic and understanding
approach.
FACTS:
5.A brief factual narration may help get a hang of the case. The petitioner
is a disabled person with loss of hearing to the extent of 90% and she has also
lost her speech ability at the age of six. With such disability, she excelled herself
in the sports events by participating in the long jump and high jump in National
and State levels. She has several first to her credit. She had so far won 13
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medals viz., 11 gold, 1 silver and 1 bronze in National and State Level
competitions. When the petitioner participated in the National selection test
conducted at New Delhi on 22nd July 2021 by the third respondent, among the
12 participants, she excelled herself in jumping a distance of 5.5 meters in the
long jump, surpassing the eligible parameter of 4.25 meters which is the
requirement to get selected. Inspite of such performance, she was not selected to
participate in the World Deaf Athletics Championship. The petitioner came to
know that out of the 12 candidates viz., 10 male and 2 female candidates, in the
female category, she secured the first in the selection list. When she sought the
reason for her non-selection, it was disclosed that the selection authorities were
not inclined to send a lone female member to the event and therefore, they have
preferred male members for the event. This, according to the petitioner, is a
discrimination based on gender and thereby her achievement in jumping 5.5
meters over and above the required 4.25 meters has been ignored. Therefore, the
petitioner has filed the present writ petition seeking a mandamus, directing the
third respondent to include her name in the final selection list and send her to
participate in the Fourth World Deaf Athletics Championship, which was
scheduled to be held at Lublin, Poland from 23.08.2021 to 28.08.2021.
6.On 13.08.2021, when the writ petition was taken up for admission, this
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court has directed the petitioner to appear before the third respondent and on
such appearance, the third respondent was directed to declare her as selected
and permit her to participate in the 4th World Deaf Athletics Championship held
at Poland under the women category. Accordingly, she was permitted to
participate in the said event and upon her performance, she is now eligible to
participate in the World Deaf Olympic Championship 2022 as well as
Paralympic 2023.
CONTENTIONS OF THE PARTIES:
7.The learned counsel for the petitioner made an extensive arguments
about the discrimination meted out by the petitioner at the hands of the
respondents on the grounds of gender as well as disability and hence, sought
appropriate direction to the authorities concerned, considering this case as an
eye opener for all female athletes with disabilities. According to the learned
counsel, the petitioner's merit and ability have been grossly disregarded by the
respondents without any reason. Inviting the attention of this Court to the
communication dated 28.07.2021 of the third respondent, the learned counsel
submitted that in the said communication, the ability and performance of the
petitioner was never undermined or questioned, however, the third respondent
expressed their inability to select the petitioner purely on gender biased reasons.
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Thus, according to the learned counsel, this is a clear case of gender
discrimination, which should not play as it spoils sports.
8.The learned counsel further contended that though this court has granted
an interim order on 13.08.2021 in favour of the petitioner, she along with her
mother, has been driven from pillar to post without there being any help
forthcoming from any body. The State has a deaf sports body in the form of
Tamil Nadu Sports Council of the Deaf (TNSCD). It is an incompetent body
that is barely functioning with the objectives with which it was formed. The
petitioner was not properly treated by the officials of All India Sport Council for
the Deaf (AISCD) during her stay at Delhi. She was dismissed from the
conversation, when it was her turn to interact with the rest of the team, before
leaving to Poland. Further, the petitioner was abused and threatened that if she
returns to India without winning a medal, she will not be allowed to be a part of
deaf sports in India. Besides that, the officials of the AISCD withheld the
passport of the petitioner and failed to get the visa work done for two days.
Thus, she was subjected to harsh treatment by the officials of the respondents at
every stage, till she participated in the event, which had impacted on her
performance adversely. Even after the petitioner returned to India, she was still
receiving mal-treatment from the officials of AISCD as well as TNSCD in the
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context of receiving funds that were allocated to other players.
9.It is also contended by the learned counsel for the petitioner that while
the Sports Authority of India (SAI) paid for the petitioner's travel only on the
basis of the interim order passed by this Court, no responsibility was taken by
them in all other respects and hence, appropriate direction has to be issued to
the respondents, so that no one like the petitioner is discriminated on the ground
of gender or disability.
10.Ultimately, the learned counsel for the petitioner placing reliance on
the decisions of the High Courts, supreme court and the foreign courts,
submitted that the inequalities and improper treatment meted out by the
petitioner should not be received by any similarly placed person in future and
the entire system relating to activities in sports has to be revamped and/or
streamlined. Therefore, he prayed this Court to issue appropriate guidelines to
be followed by the respondents, so that the potentialities of those who are
meritorious in any form of sports, should not go unnoticed.
11.Repudiating the averments made by the petitioner in the writ petition,
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the learned Central Government Standing Counsel appearing for the respondents
1 to 3 submitted that the respondent officials have rendered all sort of assistance
to the petitioner in participating in the event and she was not in any manner
discriminated by reason of her gender and in fact, she was encouraged to prove
the best of her ability and excel well. The learned counsel further submitted that
the respondent authorities will continue to extend their unstinted cooperation to
improve the sports, without any ill-treatment or gender discrimination as alleged
by the petitioner.
12.Adding further, the learned Government counsel appearing for the
respondents 4 and 5 submitted that the respondent authorities are rendering all
kind of supports to the sport persons, without any discrimination and treating
them with equality and dignity, so as to encourage them to participate actively in
all the events and achieve success.
13.Heard both sides and perused all the materials placed before this court.
ANALYSIS:
14.As stated earlier, pursuant to the interim order dated 13.08.2021,
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granted by this court, the petitioner participated in the 4th World Deaf Athletics
Championship held at Poland and she is now, eligible to participate in the World
Deaf Olympic Championship 2022 as well as Paralympics, 2023. In view of the
subsequent development that had taken place, the relief sought for in the writ
petition no longer survives for consideration. However, the difficulties and
problems faced by the petitioner at the hands of the respondent officials, on the
ground of gender and disability, at each level, though she was qualified in the
National selection test to participate in the event and was also armed with the
interim order of this court, cannot be slightly brushed aside, by this court. This is
a clear-cut case of gender discrimination attracting the rigour of Article 15(1) of
The Constitution of India3 and the petitioner has meted out the double
discrimination and hence, this has to be examined with an intersectional lens so
as to take appropriate measures by the authorities concerned for the purpose of
eradicating all the difficulties / challenges faced and preventing from the injury
suffered, not only by the petitioner, but also all the women athletes with
disabilities.
Concept of Intersectionality:
15.Due to gender and disability, the women with disabilities confront
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various disadvantages which includes not only social divisions, but also poverty,
race, class or sexuality. These factors contribute and exclude disabled women
from a uniform category, since each disability suffers by every woman is unique
in itself and it calls for a potent tool that can address them all. Intersectionality
lends itself to such type of analysis. It can be structural, when it refers to
inequalities, which people experience as a result of their position in society. It
has been described as one of “the most important theoretical contributions that
women studies has made thus far”4.
16.The term ‘intersectionality’ was crafted by Kimberle Crenshaw5 in
1991, who studied the experiences of those at the intersections of two factors,
that is, racial identity and gender. She argued that black women did not face
marginalisation, discrimination or violence, because of their race or sex, but
because of the intersection of both race and sex, which makes their experience
unique and different from a person facing any one factor/marker of
discrimination alone. She argued that gender-based discrimination is
multidimensional and the singular focus on rape as a manifestation of male
power over female sexuality tends to eclipse the use of rape as a weapon of
racial terror.
17.In the Indian context, it is often seen that the factors like caste and
gender are intrinsically linked. Similarly, disability and gender are linked in a
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way that make females with disabilities more vulnerable to such cumulative or
compounded disadvantage and resultant discrimination6. Here, it is important to
emphasize that the difficulties and barriers faced by a person facing any one axis
of discrimination, for example- gender, are different from a person facing
multiple axis of discrimination like disability, caste and gender together. The
different identities within the same person intersect and co-exist in a way so as
to give the individual a qualitatively different experience than any one of the
individual markers of discrimination or any of the individual characteristics.
Therefore, where the axis of discrimination intersect, it is essential to view such
cases from the lens of intersectionality in order to understand that the barriers,
the challenges, the stigma as well as the practical difficulties faced by such
persons are not only more intense, but also different and unique which call for a
more in-depth and all-encompassing approach for addressing their grievances
and ensuring substantive equality to them. Intersectionality, therefore, rejects a
narrow or limited understanding of equality where the factors or markers of
discrimination are isolated or are in singular spheres.7
18.In a recent decision in Patan Jamal Vali v. State of Andhra
Pradesh8, the Supreme Court has held that “the intersectional identity of a
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disabled woman from a scheduled caste community would place her in a
uniquely disadvantaged position”. In the said case, the Supreme Court has
overturned the conviction of the accused by the High Court under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 as the
prosecution failed to prove that the offence of rape was committed on account of
the woman belonging to the scheduled caste community under sections 3 to 5 of
the Act. In that case, the Supreme Court applied the concept of
‘intersectionality’ after having considered that it was a relevant factor in
sentencing the accused for the offence of rape under section 376 of the Indian
Penal Code, 1860 in the light of the woman’s caste and disability. Ultimately,
the Supreme Court observed thus:
“12. The experience of rape induces trauma and horror for
any woman regardless of social position in the society. But the
experiences of assault are different in the case of a woman who
belongs to a scheduled caste community and has a disability
because the assault is a result of the interlocking of different
relationships of power at play. When the identity of a woman
intersects with, inter alia, her caste, class, religion, disability and
sexual orientation, she may face violence and discrimination due
to two or more grounds. Transwomen may face violence on
account of their heterodox gender identity. In such a situation, it
becomes imperative to use an intersectional lens to evaluate how
multiple sources of oppression operate cumulatively to produce a
specific experience of subordination for a blind scheduled caste
woman”.
19.The adoption of this intersectional approach breaks new ground in
Indian jurisprudence as it recognises the specific and unique challenges faced by
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the women with disabilities due to their cumulatively dis-empowered position.
The following paragraphs of the judgement in Patan Jamal Vali9 may be
usefully extracted as under:
“17. Intersectionality merely urges us to have “an open
textured legal approach that would examine the underlying
structures of inequality”. This requires us to analyse law in its
social and economic context allowing us to formulate questions of
equality as that of “power and powerlessness” instead of
difference and sameness. The latter being a conceptual limitation
of single axis of analysis, it may allow a certain intersectional
claims to fall through the cracks since such claims are not
unidirectional in nature.
18. Intersectional analysis requires an exposition of reality
that corresponds more accurately with how social inequalities are
experienced. Such contextualised judicial reasoning is not an
anathema to judicial enquiry. It will be useful to note the
comments of Justice L’Heureaux-Dube and Justice McLachlin in
the Canadian Supreme Court’s judgement in R v. S (RD) (1997) 3
S.C.R. 484 AT 506-507 that, “(j)udicial enquiry into the factual,
social and psychological context within which litigation arises is
not unusual. Rather, a conscious, contextual enquiry has become
an accepted step towards judicial impartiality… This process of
enlargement is not only consistent with impartiality; it may also be
seen as essential precondition.”
19. Single axis models of operation are a consequence of
how historically movements aiming for the legal protection of
marginalised populations developed. Most political liberation
struggles have been focused on a sole characteristic like anti-
caste movements, movements by person with disabilities, feminism
and queer liberation. Many such movements have not been able to
adequately address the intragroup diversity leading to a situation
where the needs of the relatively privileged within the group have
received more than a fair share of spotlight. When these liberation
struggles were adopted in law the law also developed into
mutually exclusive to a range of different statutes addressing
different marginality is failing to take into account the
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intersectional nature of oppression.
20. In India, the fundamental guarantees under the
Constitution provide for such a holistic analysis of discrimination
faced by individuals. One of us (Justice D Y Chandrchud) in
Navtej Johar v. Union of India (2018) 10 SCC 1, applied the
intersectional lens to Article 15(1) of the Constitution. In doing so
Justice D Y Chandrachud observed that:
36. This formalistic interpretation of Article 15
would render the constitutional guarantee against
discrimination meaningless. For it would allow the state
to claim that the discrimination was based on sex and
another ground and hence outside the ambit of Article
15. Latent in the argument of the discrimination, are
stereotyped notions of the differences between men and
women which are then used to justify the discrimination.
This narrow view of Article 15 strips the prohibition on
discrimination of essential content. This fails to take
into account the intersectional nature of sex
discrimination, which cannot be said to operate in
isolation of other identities, especially when from the
socio-political and economic context. For example a
rule that people over six feet would not be employed in
the Army would be able to stand an attack on its
disproportionate impact on women if it was maintained
that the discrimination is on the basis of sex and height.
Such a formalistic view of the prohibition in Article 15,
rejects the true operation of discrimination which
intersects varied identities and characteristics.
( emphasis supplied)
21. Noting how the discrimination caused by intersecting
identities amplifies the violence against certain communities
(gendered /religious /otherwise), the Justice JS Verma committee
appointed in the aftermath of the NetWare incident to suggest
reforms in Indian criminal law, observed that:
“34. We believe that while certain measures may have
been taken over a period of time but they have been too far
and too few and they certainly have not attempted to
restructure and transform society and its institutions. If
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there has to be a society which is based on equality of
gender we must ensure that not only does a woman not
suffer on account of gender but also not suffer on account of
caste or religion in addition. Thus a woman may suffer a
double disadvantage-a) because she’s a woman, and b)
because she belongs to a caste/tribe/community/religion
which is disadvantaged, she stands at a dangerous
intersection if poor.”
22. While intersectionality has made considerable strides in
the field of human rights law and antidiscrimination law, it has
also emerged as a potential tool to understand gender based
violence. In 1991, Crenshaw applied the concept of intersectional
it to study violence against women of colour. She showed how
race, gender, poverty, immigrant status and being from a
linguistic minority interacted to place these women in violent
relationships.
23. To deal with cases of violence against women from
intersectional backgrounds, Shreya Atrey proposed a model of
intersectional integrity. She notes:
"Intersectional gender violence is about: (i)
rejecting violations of bodily and mental integrity when
perpetrated based on people’s multiple and intersecting
identities (intersectionality); and (ii) recognising that
violence should be understood as a whole taking into
account unique and shared patterns of violations yielded
buys into sections of gender, race, caste, religion,
disability, age, sexual orientation etc (integrity)."
24. She points out that a failure to consider violence
perpetrated based on multiple identities and presents an
inaccurate portrayal of the violence at issue which may impact the
ability to obtain relief. On the other hand a comprehensive
appraisal of the intersectional nature of the violence can translate
into an appropriate legal response.
25. The above analysis stresses on the need for the court to
address and unpack the qualitative impact of the various identities
and individual might have on the violence, discrimination or
disadvantage being faced by them in the society.
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C-2 Disability and Gender: Twin tales of Societal
Oppression
26. For many disabled women and girls in India, the
threat of violence is an all too familiar fixture of their lives,
contracting their constitutionally guaranteed freedom to move
freely and curtailing their ability to lead full and active lives this
threat of violence can translate into a nagging feeling of
powerlessness and lack of control making the realisation of the
promises held by Parts III and IV of our Constitution a remote
possibility for women with disabilities.
27. In saying so, we do not mean to subscribe to the
stereotype that persons with disabilities are weak and helpless,
incapable of charting the course of their lives or to deprive them
of the agency and bodily autonomy that we all possess and are
entitled to exercise. Such a negative presumption of disability
translating into incapacity would be inconsistent with the forward
thinking conceptualisation of disabled lives embodied in a law and
increasingly, albeit slowly, in our social consciousness. As
Saptarshi Mandal notes, in critiquing the fashion in which the
Punjab and Haryana High Court dealt with the testimony of a
mentally disabled and partially paralysed prosecutrix, stamping a
prosecutrix with the badge of complete helplessness, merely on the
basis of disability, is an inapposite course of action. He notes-
The entire rationale behind the conviction of the accused
turned on sympathy for the helpless prosecutrix and her
inability to physically resist the aggressor. Even if one agrees
with the judge that there cannot be a single standard burden
of proof for the disabled and the able-bodied, a differentiated
scale of the burden of proof must be based on the concept of
vulnerability, not victimhood.
28. Instead, our aim is to highlight the increased
vulnerability and reliance on others that is occasioned by having
a disability which makes women with disabilities more susceptible
to being at the receiving end of sexual violence. As the facts of the
case makes painfully clear, women with disabilities, who inhabit a
world designed for the able bodied, are often perceived as “soft
targets “and “easy victims “ for the commission of sexual
violence. It is for this reason that legal response to such violence,
in the instant case as well at a systemic level must exhibit
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attentiveness to the salient fact”.
20.“Intersectionality in policy denotes interaction of reciprocally mutually
constitutive inequalities producing an effect which is different from what each of
their dimensions would produce separately, and also different from the addition
of their separate parts together. When an intersectional approach is adopted, it
should be done in combination with focusing on the effects of discrimination
generated by the intersection of gender and disability”.10 There are many
dimensions differentiating inequalities among the social categories and these
inequalities are not independent, but are influenced by political, historical, social
and cultural intersections, which shape individual and collective experiences.
21.In the intersectional analysis, certain elements are required for
consideration and they include social divisions, such as organizational,
experimental and representational discriminations. Social divisions are
witnessed in a daily life of the disabled women in the form of attitudes,
ideologies and communities. They are largely attributable not due to the power,
but due to cultural dominant discourses and ideas relating to representations of
body or theories about disability and normality. These are all the larger factors,
which rattle disabled women being disabled.
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22.In 2006, the United Nations adopted the Convention on the Rights of
Persons with Disabilities (CRPD), the first international human rights treaty,
intending to protect the rights and dignity of the persons with disabilities. Its
purpose is to promote, protect and ensure the full and equal enjoyment of all
human rights and fundamental freedoms by all persons with disabilities, and to
promote respect for their inherent dignity. The Convention adopts a
comprehensive and holistic approach to raise awareness and to ensure the
persons with disabilities' rights to accessibility, independent living and
participation in all aspects of society. Discrimination on the basis of gender and
disability is a fact officially recognised by CRPD. Its Article 3 focuses
specifically on non-discrimination and equality between men and women.
Article 6 recognizes that women and girls with disabilities are subject to
multiple discrimination, and that State parties shall take all appropriate measures
to ensure the full and equal enjoyment by them of all human rights and
fundamental freedoms and to ensure the full development, advancement and
empowerment of women with disabilities. Article 16 is about Freedom from
exploitation, violence and abuse; and focuses specially on the obligation for
states parties to put in place effective legislation. In Article 30, the CRPD
perceptively addresses these issues using sports and rights to participation in
cultural life, recreation, leisure, and sport as an influential tool for inclusion and
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Article 30(5) provides for the right of persons with disabilities to participate “on
an equal basis” in sports, recreation, and leisure activities. Thus, the CRPD
brings to the forefront the right of people with disabilities to engage in sports.
Besides that, it calls for state measures, which will safeguard women’s full
enjoyment of all their rights and freedoms, such as, equal rights in accessing
services, education, employment, health and personal life.
23.During the last two Ad hoc sessions of the Convention, the drafters
changed the preamble from ‘States Parties recognize the right of persons with
disabilities, on an equal basis with others…’ to ‘with a view to enabling
persons with disabilities to participate on an equal basis with others …’. This
change was the result of a comment made by the European Union during the 6th
Ad hoc session, which reads as follows:
“There is no express ‘right’ to recreational, leisure and
sporting activities in the CESCR [Committee on Economic
Social and Cultural Rights]. The language in the chapeau of
para 4 is ambiguous on this point and should be amended
accordingly. The chapeau’s wording may have been based on
CEDAW Article 10(g), which addresses this issue as a matter of
equality between women and men and not as a standalone right.
The Report of the Ad hoc Committee (2005) in its sixth session
stated that ‘there was general support to amend the chapeau to
make it clear that the paragraph does not refer to an existing
right to participate in sport and leisure activities.”
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24.Article 1 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) states, ‘all peoples have the right to self-
determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development’.
Article 7 specifically says that the State parties to the present Covenant
recognize the right of everyone to the enjoyment of just and favourable
conditions of work, which ensure, in particular, remuneration, fair wages,
decent living, safe and healthy working conditions, equal opportunity for
promotion and rest, leisure and reasonable limitation of working hours and
periodic holidays with pay, as well as remuneration for public holidays. In
addition, Article 12 discusses the right to the highest standard of physical and
mental health; and Article 13 recognizes the right to education directed to the
full development of the human personality and the sense of its dignity. Other
Articles of the ICESCR also recognize the rights that essentially embody the
right to sport, recreation, play and leisure. For example, Article 15 recognizes
the right of everyone to take part in cultural life, which universally includes
sports.
25.In the Convention on the Rights of Persons with Disabilities as
observed by the Committee in General Comment No.6, “intersectional
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discrimination can be direct, indirect, denial of reasonable accommodation, or
harassment”11. This approach has also been reiterated by the Supreme Court in
Vikash Kumar v. UPSC,12 wherein, the supreme court has held that
“disability-based discrimination is intersectional in nature and policy of
reasonable accommodation thus cannot be unidimensional”. The Convention
on the Elimination of Discrimination against Women Committee (CEDAW),
which promotes action in order to support persons with disabilities and their
families and caregivers, also recognises that the categories of discrimination
cannot be reduced to watertight compartments. In General Recommendation
No.25, the CEDAW committee suggests “the adoption of special measures for
women to eliminate multiple rounds of discrimination”.13
26.Article 25 of the Universal Declaration of Human Rights, which grants
to each person the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in circumstances
beyond their control and its prohibition of discriminations, beyond the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, and due to the World
Programme of Action Concerning Disabled People (1982), the Convention on
the Rights of the Child (1989), and the Standard Rules on the Equalisation of
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Opportunities for People with Disabilities (1993), disability has become a
human rights issue. More than 40 nations have adopted disability discrimination
legislations since the 1990s. The concept of human rights for persons with
disabilities is now accepted internationally.
27.The UNESCO International Charter on Physical Education and Sport
states, “one of the essential conditions for the effective exercise of human
rights is that everyone should be free to develop and preserve his or her
physical intellectual and moral powers, and that access to physical education
and sport should consequently be assured and guaranteed for all human
beings”. The United Nations Inter-Agency Task Force on Sport for
Development and Peace report states “Access to and participation in sport is a
human right and essential for individuals of all ages to lead healthy and
fulfilling lives”.
28.1. “The legal implications of the convention may be on three levels –
international, regional, or national, according to the Article titled: Aiming for
Inclusive Sport: the Legal and Practical Implications of the United Nation's
Disability Convention for Sport, Recreation and Leisure for People with
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Disabilities”.14 The said Article further proceeds to state that at the international
level, several barriers prevent a Convention from being enforced. First, it is a
horizontal system, where there is no legislature or courts with compulsory
jurisdiction, but rather only primary rules without secondary rules of legislative,
adjudicative, and enforcement procedures. In addition, only states may bring
actions against other states for violations to the International Court of Justice.
Individuals or non-profit organizations have no power to enforce at this level. It
is also highly unlikely for a State to be concerned with enforcing the right to
sport for citizens of other countries. The main reason is that countries
understandably reserve such actions for more gross violations of human rights,
such as, torture or genocide, despite the fact that a cornerstone principle in
human rights is that all human rights are equal.
28.2. Regional human right systems, such as the European Convention on
Human Rights, the Inter-American Commission on Human Rights, or the
African Court on Human Rights, have been labelled by scholars as far more
effective than those at the international level. This can be as a result of operating
vertical structure instead of the horizontal structure that the United Nations
employs. For example, the European Union and the Council of Europe employ
legislative, executive and judicial organs. Besides this, they entertain both
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interstate and individual complaints.
28.3. At the national level, the Disability Convention, like all human
rights Conventions, requires that states parties take all appropriate measures,
including legislation, to modify or abolish existing laws, regulations, customs
and practices that constitute discrimination against persons with disabilities,
(Article 4(b) of CRPD). Countries must also refrain from engaging in any act or
practice that is inconsistent with the present Convention and to ensure that
public authorities and institutions act in conformity with the present Convention,
(Article 4(d) of CRPD).
The Rights of Persons with Disabilities Act, 2016 (RPwD Act)
29.While several constitutional exponents have recommended the
inclusion of the specific provision 'disability' as a ground for non-
discrimination to be included under Article 15 of the Constitution15, it is also
important to incorporate a legal and constitutional recognition of discrimination
that may spring from multiple, compounded, cumulative or intersectional
markers or factors. Therefore, it is necessary to take a closer look at the
disability legislation, i.e. The Rights of Persons with Disabilities Act, 2016
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(RPwD Act), which was passed as a measure of fulfilment of India’s ratification
of the United Nations Convention on the Rights of Persons with Disabilities
(UNCRPD) adopted in December 2006 and which became effective with effect
from May 2008. The RPwD Act is a paradigm shift from a technical model of
disability carrying with it the heavy burden of stigma under the 1995, Act to a
model of disability that encompasses within its fold physical, mental,
intellectual, social, psycho-social and other barriers that accompany disability
which lie at the heart of exclusion of the disabled from realising their full
potential and participating in society as full and equal members and citizens as
contemplated by the framers of our Constitution.
30.Under section 2(s) of the RPwD Act, a “person with disability” means,
"a person with long-term physical, mental, intellectual or
sensory impairment which, in interaction with barriers, hinders
his full and effective participation in society equally with
others.
(iii) A barrier is defined under section 2(c) in the following terms-
“barrier” means any factor including communicational,
cultural, economic, environmental, institutional, political, social,
attitudinal or structural factors which hampers the full and
effective participation of persons with disabilities in society”."
31.The RPwD Act recognises 21 specified disabilities and is definitely
expansive in scope as compared to the earlier 1995 Act. However, a deeper
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analysis would show that several factors which affect the day-to-day life of the
disabled are yet to be captured either by this legislation or by making specific
constitutional provision in this regard. The principle of ‘reasonable
accommodation’ has also found specific mention and manifestation in the 2016
Act under section 2(y), which means “necessary and appropriate modification
and adjustments, without imposing a disproportionate or undue burden in a
particular case, to ensure to persons with disabilities the enjoyment or
exercise of rights equally with others”.
32.Section 3 of RPwD Act deals with equality and non-discrimination,
which reads as follows:
“3. Equality and non-discrimination-
(1) The appropriate government shall ensure that the
Persons with disabilities enjoy the right to equality, life with
dignity and respect for his or her integrity equally with others.
(2) The appropriate government shall take steps to utilise
the capacity of Persons with Disabilities by providing
appropriate environment.
(3) No person with disability shall be discriminated on the
ground of disability, unless it is shown that the impugned act or
omission is a proportionate means of achieving a legitimate aim.
(4) No person shall be deprived of his or her personal
liberty only on the ground of disability.
(5) The appropriate government shall take necessary steps
to ensure reasonable accommodation for persons with
disabilities.
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33.According to Section 3(2), it is for the appropriate government to take
steps to utilise the capacity of persons with disabilities by providing appropriate
environment. In Sub-section (5) of Section (3) it was further reiterated that the
appropriate government shall take necessary steps to ensure reasonable
accommodation of persons with disabilities. In the opinion of this court, the said
provisions of Sections 3(2) & 3(5) of the RPwD Act are directly attracted the
facts of the present case.
34.In the recent judgement in Vikash Kumar16, the Supreme Court has
analysed in detail the provisions of the Rights of Persons with Disabilities Act,
2016 (RPwD Act), and interpreted the legislation as being a statutory
manifestation of a constitutional commitment of equality and non-
discrimination, apart from holding that the RPwD Act is a statutory recognition
of the constitutional rights embodied in Articles 14, 19 and 2117 among other
provisions of Part III of the Constitution18. It further went on to hold that
ensuring the disabled a life of equal dignity and worth and non-
discrimination was important along with reasonable accommodation, which
would mandate a positive obligation to the State and private parties to provide
additional support to persons with disabilities to facilitate their full and equal
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effective participation in society. On an analysis of the various postulates
envisaged under the RPwD Act, the Supreme Court has held that equality, non-
discrimination and dignity are the essence of the protective ambit of the Act. If
one dwells on what exactly is the source from which the ideals of equality, non-
discrimination and dignity which are the perceived goals of the Act along with
reasonable accommodation and affirmative action, are drawn, it would not only
be purposive, but also necessary to aspire to create a constitutional bulwark for
enforcement of equality before the law, equal protection of law as well as
equality of status and opportunity to the disabled, in a more articulate manner.
Women with disabilities
35.Normally, it can be perceived that women with disabilities will be at a
higher rate of risk of violence. They can be classified as traditional forms such
as physical, sexual and emotional and non-traditional forms, such as deprivation
of medication, restriction for access to mobility or communication equipment,
personal care and hygiene, medical consultation, fear of institutionalisation, etc.
These forms of abuse can best be overcome with increased dependence
(physical, emotional and financial) against the perpetrator, comprehension and
reactions by police or other professionals.
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36.According to Rashida Manjoo, UN Special Rapporteur on Violence
Against Women (SRVAW), “violence against women is the most pervasive
human rights violation, which continues to challenge every country in the
world and the United States is no exception”. Women with disabilities are
always at the receiving end and they are neglected even by their husbands,
besides being abused or deserted by citing their disability. Whereas, men with
similar disability are always cared by their wives. Therefore, women with
disability are vulnerable in terms of discrimination by reason of their gender,
age, minority status, convergence and intersect in areas relating to gender-based
violence, traditional practices, trafficking etc. It is the words of Senator, Boren
that “Violent crimes against women are not limited to the streets of the inner
cities, but also occur in homes in the urban and rural areas across the
country. Violence against women affects not only those who are actually
beaten and brutalized, but indirectly affects all women. Today, our wives,
mothers, daughters, sisters, and colleagues are held captive by fear generated
from these violent crimes-held captive not for what they do or who they are,
but solely because of gender.19 Senator, William Cohen (D-Me.) followed with
a similar statement, noting that “rapes and domestic assaults are not limited to
the streets of our inner cities or to those few highly publicized cases that we
read about in the newspapers or see on the evening news. Women throughout
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the country, in our Nation's urban areas and rural communities, are being
beaten and brutalized in the streets and in their homes. It is our mothers,
wives, daughters, sisters, friends, neighbours, and co-workers who are being
victimized; and in many cases, they are being victimized by family members,
friends, and acquaintances”.
Participation of women athletes in sports:
37.The data furnished on the side of the petitioner, during the course of
hearing, would show that during the 2018 Winter Olympics, 23 out of the 92
competing countries, did not send any female athletes. The 2018 Winter
Olympic Games consisted of 1724 male competitors and 1224 female athletes.
The number of women increased from 2014 but it was a small increase of 46.
While progress has been made in general, when it comes to inclusion rates for
women in the Olympics compared to men, the Paralympics tell a different tale.
In 2018, male participants outnumbered female athletes 431-123. In 2021, India
had sent its largest ever contingent to the Tokyo 2020 Paralympic Games with
54 athletes out of which 40 were men and 14 were women, which makes it a
mere 25%. It is therefore apparent that the sheer lack of numbers in participation
by itself acts as a barrier to disabled women athletes. Barriers faced by women
athletes with disabilities include socio-cultural, economic as well as knowledge
barriers.20 While society as a whole needs to change their mindset towards
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breaking the false correlation between women with disabilities participating in
sport and treating the same as socially unacceptable, the Government should
also do the needful to support the Paralympic competitors by providing
appropriate, safe and accessible infrastructure as also other support like
prosthetics and adequate clothing, along with campaigning for awareness of the
benefits of physical activity. Further, the Government should also grant adequate
and structured financial assistance to the athletes in order that economic
conditions do not act as a barrier in the fulfilment of the goals of young women
with disability, in attaining success in their respective fields, which in turn
would result in their winning accolades for our country. It is also seen that the
governments offering higher financial rewards and support to sports persons are
naturally performing better on account of the economic support to them as well
as their families allowing them to focus more on the sport while not having to
worry about their livelihood as well as their other financial needs. The State of
Haryana has paid the highest cash reward among all states in India to an
Olympic or Paralympic medallist at Rs. 6 crore for an Olympic gold, Rs.4 crore
for silver and Rs. 2.5 crore for bronze. However after the Tokyo Olympics, the
State has announced that it will also give Rs. 50 lakh to athletes who narrowly
missed out on medals finishing fourth. Further, the State gave Rs.15 lakhs to
every Haryana athlete, who qualified for the Tokyo Olympics regardless of
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performance. In comparison, the Indian Olympic Association gave Rs. 75 lakh
for Olympic gold and Rs.1 lakh for all Olympians.
Doctrine of Reasonable Accommodation:
38.Section 2(6) of RPwD Act defines 'reasonable accommodation' which
means necessary and appropriate modification and adjustments, without
imposing a disproportionate or undue burden in a particular case, so as to ensure
that persons with disabilities enjoy or exercise all rights equally with others. The
said doctrine assumes great significance, as it requires appropriate adjustments
in order that persons with disabilities, enjoy and exercise rights on par with
able-bodied persons.
39.The 'doctrine of reasonable accommodation' has been given effect to in
the judgement of the Supreme Court in Vikash Kumar21, wherein, the petitioner
sought for the facility of a scribe for appearing at the Civil Services
Examination. After a detailed and complete exposition on the law on the subject,
the Supreme Court held that to deny the facility of a scribe in such a situation
would negate the valuable rights and entitlements recognised by the RPwD Act,
2016 and therefore declared that the appellant would be entitled to the facility of
a scribe for appearing at the civil services examination and any other
competitive selection conducted under the authority of the government.
40.In the same judgement, the Supreme Court also had an opportunity to
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consider the correctness of the judgement in V.Surendra Mohan v. State of
Tamil Nadu22, where a two judge bench of the Supreme Court had confirmed
the judgement of the Madras High Court upholding the decision of the
government that those who are partially blind with 40 to 50% disability were
only eligible and the appellant having 70% disability was not eligible to
participate in the selection for Civil Judge (Junior Division). The Supreme Court
observed in Paragraph 53 thus:
“this judgement was delivered by this court after India
became a party to the UNCRPD and the RPwD Act 2016 came
into force. The aforesaid view espoused by this court is innocent
of the principle of reasonable accommodation. This court did not
consider whether the failure of the TNPSC to provide reasonable
accommodation to judge with a disability above the impugned
ceiling the statutorily or constitutionally tenable. There is no
reference in the court’s judgement whether the appellant would
have been able to discharge the duties of a Civil Judge (Junior
Division), after being provided the reasonable accommodations
necessitated by his disability.”
The Supreme Court thereafter went on to declare that the judgement in
V.Surendra Mohan23 would not be a binding precedent as it stands on a legally
vulnerable footing considering that there was a complete absence of any analysis
with respect to reasonable accommodation by the two judge bench. This will
show that the emphasis laid by the United Nations Convention and the
implementation of the same by the RPwD Act 2016 as interpreted by the
Supreme Court on equality, non-discrimination, dignity as well as equal
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opportunity and the resultant reasonable accommodation are all uncompromising
ideals especially in view of our Constitution based on the principles of equality
and dignity.
41.In the present case, if the respondents would have given effect to the
principle of reasonable accommodation as mandated by the legislature, the
reason cited for not permitting the petitioner to travel along with her male
competitors, smacks of blatant discrimination cloaked in protectionism, which is
anathema to the substantive equality as envisaged under the Constitution of
India. Rather than citing the reason of unsafe travel, it is incumbent on the State
to ensure safety and security of its women, disabled or otherwise, as highlighted
by the judgment in Anuj Garg v. Hotel Association of India24, where the Court
held that “instead of placing curbs on women’s freedom in the garb of
protection and security, and instead of prohibiting women from taking up
certain types of employment, the State should focus on factoring in ways
through which unequal consequences of sex differences can be eliminated. It is
the state’s duty to ensure circumstances of safety which inspire confidence in
women to discharge the duties freely in accordance to the requirements of the
profession they choose to follow”.
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Protectionism and Romantic Paternalism:
42.In the legislative background as discussed in the preceding paragraphs,
it is also essential to analyse the other aspects of protectionism in the specific
circumstances of the present case, where the petitioner was not permitted to
travel and participate in the Fourth World Deaf Athletics Championship, 2021
only on account of the fact that she was the only woman athlete as against 10
male athletes.
43.The discrimination caused to women is often couched in
‘protectionism’ citing traditional concepts of stereotyped roles for women and
the purported concern for their safety and security. This is also known as
“romantic paternalism” of American jurisprudence [Refer: Frontiero v.
Richardson25 and Dothard v. Rawlinson26]. This has been dealt with at length
in the first significant judgment of its kind in Anuj Garg27. The relevant
paragraphs of the same judgment may be profitably reproduced below:
“42. The description of the notion of “Romantic
paternalism” by the US Supreme Court in Frontiero v.
Richardson (411 U.S.677, 93 S.Ct. 1764) makes for an
interesting reading. It is not to say that Indian society is
similarly situated and suffers from the same degree of
troublesome legislators passed but nevertheless the tenor and
context are not to be missed. The court noted in this case of
military service:
“There can be no doubt that our nation has had a long
and unfortunate history of sex discrimination. Traditionally,
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such discrimination was rationalised by an attitude of
“romantic paternalism” which, in practical effect, put women,
not on a pedestal, but in a cage. As a result of notions such as
these, statute books gradually become laden with gross,
stereotyped distinctions between the sexes”
The court also maintained a strict scrutiny standard for
review and repel the administrative convenience argument in
the following terms:
“in any case, a prior decisions make clear that, although
efficacious administration of governmental programs is not
without some importance,’ the Constitution recognises higher
values than speed and efficiency’. And when we enter the realm
of strict judicial scrutiny , there can be no doubt that
administrative convenience is not a shibboleth, the mere re-
citation of which dictates constitutionality.
On the contrary, any statutory scheme which draws a
sharp line between the sexes, solely for the purpose of
achieving administrative convenience, necessarily commands
“dissimilar treatment for men and women who are similarly
situated”, and therefore involves the “very kind of arbitrary
legislative choice forbidden by the (Constitution). We therefore
conclude that, according differential treatment of male and
female members of the uniformed services for the sole purpose
of achieving administrative convenience, the challenged
statutes violate the Due Process Clause of the Fifth
Amendment.”
43. In another similar case wherein there was an effective
bar on females for the position of guards are correctional
counsellors in the Alabama State penitentiary system. The
prison facility housed sexual offenders and the majority opinion
on this basis inter alia upheld the bar. Justice Marshall’s
dissent captures the range of issues within a progressive
paradigm. Dissent in Dothard v. Rawlinson (433 US 321,
97S.CT.2720) serves as useful advice in the following terms:
“It appears that the real disqualifying factor in the
court’s view is the ‘the employees very womanhood’. The Court
refers to the large number of sex offenders in Alabama prisons,
and to “the likelihood that inmates would assault a woman
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because she was a woman”. In short the fundamental
justification for the decision is that women as guards will
generate sexual assaults. With all respect, this is rational
regrettably perpetuates one of the most insidious of the old
myths about women that women, wittingly or not, are seductive
sexual objects. The effect of the decision, made I am sure with
the best of intentions, is to punish women because their very
presence might provoke sexual assaults it is women who are
made to pay the price in lost job opportunities for the threat of
depraved conduct by prison inmates once again, “the pedestal
upon which women have been placed has upon closer
inspection, been revealed as a cage”. It is particularly ironic
that the cages erected here in response to feared misbehaviour
by imprisoning criminals.”
He also notes the nature of protective discrimination (as
garb) in the following terms:
“The court points to no evidence in the record to support
the asserted ‘likelihood that inmates would assault a woman
because she is a woman’. Perhaps the court relies upon
common sense, or ‘innate recognition’. But the danger in this
emotionally laden context is that common sense will be used to
mask the ‘romantic paternalism’ and persisting discriminatory
attitudes that the court properly esters. To me the only matter of
innate recognition is that the incidence of sexually motivated
attacks on guards will be minute compared to the “likelihood
that inmates will assault” a guard because he or she is a guard.
The proper response to inevitable attacks on both female
and male guards not to limit the employment opportunities of
law-abiding women who wish to contribute to their community,
but to make swift and sure punitive action against the inmate
offenders. Presumably, one of the goals of the Alabama prison
system is eradication of inmates’ antisocial behavioural
patterns so that prisoners will be able to live one day in free
society. Sex offenders can begin this process by learning to
relate to women guards in a socially acceptable manner. To
deprive women of job opportunities because of the threat and
behaviour of convicted criminals is to turn a social propriety’s
priorities upside down.
The standard of judicial scrutiny
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44. It is to be borne in mind that legislations with
pronounced protective discrimination” aims, such as this one,
potentially serve as double-edged boards script strict scrutiny is
test should be employed while assessing the implications of this
variety of legislations. Legislation should not be only assessed
on its proposed aims but rather on the implications and the
effects. The new legislation suffers from incurable fixations of
stereotyped morality and conception of sexual role the
perspective thus arrived at is outmoded in content and stifling it
means.
45. No law in his ultimate effect should end up
perpetuating the oppression of women. Personal freedom is a
fundamental tenet which cannot be compromised in the name of
expediency until unless there is a compelling state purpose.
Heightened level of scrutiny is a normative threshold for
judicial review in such cases”.
44.The above view of the Supreme Court in Anuj Garg28, as also in the
cited decisions of the United States Supreme Court, would make it clear as
daylight that by not permitting the petitioner herein to travel along with her male
counterparts, once again the government and the respondents have discriminated
against her on the ground that she is a woman and that she also suffers the
further cumulative and intersectional disadvantage of being disabled, and that on
account of these factors, the justification seems to be that she is at the risk of
being assaulted or unsafe, sexually or otherwise. In effect, this rationale is, what
has been referred to in the above decisions as perpetuating the dangerous myth
that women are seductive sexual objects. Analysing the said factors, it has been
categorically held that it is the duty of the State to provide and ensure safety for
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women in a way so as to inspire confidence to discharge their duty freely in any
profession of their choice. The same well applies to the case at hand.
Indirect Discrimination:
45.In the most recent cases, on whether women engaged in Short Service
Commission in the Indian Army can claim Permanent Commission, was
addressed by the Supreme Court in Ministry of Defence v. Babita Puniya29, in
which, the Supreme Court has stressed upon breaking of the stereotypes and the
duty of the State in this regard. Breathing new life into the concept of
substantive equality, the Supreme Court in Lt. Col. Nitisha and Ors. v. Union
of India and Ors30, has stressed upon the concept of ‘indirect discrimination’ as
a tool of jurisprudential analysis and held that the same can result in the
redressing of several inequities by probing provisions, criteria of practice that
have a disproportionate and adverse impact on members, who belong to groups
that are constitutionally protected from discrimination under Article 15(1).
While explaining the concept of indirect discrimination, it has been stated that
actions taken on a seemingly innocent ground in-fact have discriminatory effects
due to structural inequalities that exist between the classes. Indirect
discrimination is caused by facially neutral criteria by not taking into
consideration the underlying effects of a provision, practice or a criterion. The
relevant portion of the decision of the Supreme Court in Nitisha31 is as follows:-
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"47. Indirect discrimination has also been recognized by
the High Courts in India. For instance, in the matters of public
sector employment, the Delhi High Court in Inspector (Mahila)
Ravina vs. Union of India (Writ Petition (C) 4525 of 2014 dated
06.08.2015) and in Madhu vs. Northern Railways (2018) SCC
Online Del 6660, has upheld challenges to conditions of
employment, which though appear to be neutral, have an adverse
effect on one section of the society. Bhat, J, while analyzing the
principles of Indirect discrimination in Madhu (supra) held:
"20. This Court itself has recognised that actions
taken on a seemingly innocent ground can in fact have
discriminatory effects due to the structural inequalities
that exist between classes. When the CRPF denied
promotion to an officer on the ground that she did not
take the requisite course to secure promotion, but she
was pregnant, the Delhi High Court struck down the
action as discriminatory. Such actions would inherently
affect women more than men. The Court in Inspector
(Mahila) vs. Union of India WP (C) 4524/2014 stated,
'A seemingly "neutral" reason such as inability of
the employee, or unwillingness, if not probed closely,
would act in a discriminatory manner, directly impacting
her service rights. That is exactly what has happened
here; though CRPF asserts that seniority benefit at par
with the petitioner's colleagues and batchmates (who
were able to clear course No.85) cannot be given to her
because, she did not attend that course, in truth, her
'unwillingness' stemmed from her inability due to her
pregnancy'
48. We must clarify here that the use of the term
'indirect discrimination' is not to refer to discrimination which is
remote, but is, instead, as real as any other form of
discrimination. Indirect discrimination is caused by facially
neutral criteria by not taking into consideration the underlying
effects of a provision, practice or a criterion.
49. The facts of this case present an opportune moment
for evaluating the practices of the respondents in evaluation for
the grant of PC. In this segment of the judgment, we will first
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outline the theoretical foundations of the doctrine of indirect
discrimination. We will then survey comparative jurisprudence
concerning the doctrine, with a view to understand its key
constituents and the legal questions surrounding its application,
namely the evidentiary burden to be discharged to invoke the
doctrine and the standards of justification to be applied. We will
then offer a roadmap for understanding and operationalizing
indirect discrimination in Indian anti-discrimination law.
50. In evaluating direct and indirect discrimination, it is
important to underscore that these tests, when applied in strict
disjunction from one another, may end up producing narrow
conceptions of equality which may not account for systematic
flaws that embody discrimination. Therefore, we will conclude
this section with an understanding of a systemic frame of
analysis, in order to adequately redress the full extent of harm
that certain groups suffer, merely on account of them possessing
characteristics that are prohibited axles of discrimination.
F.1 Theoretical Foundations of Indirect Discrimination
51. Hugh Collins and Tarunabh Khaitan explain the
concept of indirect discrimination using Aesop's fable of the fox
and the stork. They note;
'Aesop's fable of the fox and the stork invokes the idea of
indirect discrimination. The story tells how the fox invited the
stork for a meal. For a mean joke, the fox served soup in a
shallow dish, which the fox could lap up easily, but the stork
could only wet the end of her long bill on the plate and departed
still hungry. The stork invited the fox for a return visit and
served soup in a long-necked jar with a narrow mouth, into
which the fox could not insert his snout. Whilst several moral
lessons might be drawn from this tale, it is often regarded as
supporting the principle that one should have regard to the needs
of others, so that everyone may be given fair opportunities in
life. Though formally giving each animal an opportunity to
enjoy the dinner, in practice, the vessels for the serving of the
soup inevitably excluded the guest on account of their peculiar
characteristics.
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be found in the opinion of Advocate General Maduro of the
Court of Justice of the European Union (CJEU). He notes that
the distinctive attribute of direct discrimination is that the
discriminator explicitly relies on a suspect classification
(prohibited ground of discrimination) to act in a certain way.
Such classification serves as an essential premise of the
discriminator's reasoning. On the other hand, in indirect
discrimination, the intention of the discriminator, and the reasons
for his actions are irrelevant. He pertinently observes: "In fact,
this is the whole point of the prohibition of indirect
discrimination; even neutral, innocent or good faith measures
and policies adopted with no discriminatory intent whatsoever
will be caught if their impact on persons who have a particular
characteristic is greater than their impact on other persons'
53. Thus, as long as a court's focus is on the mental
state underlying the impugned action that is allegedly
discriminatory, we are in the territory of direct discrimination.
However, when the focus switches to the effects of the
concerned action, we enter the territory of indirect
discrimination. An enquiry as to indirect discrimination looks,
not at the form of the impugned conduct, but as its
consequences. In a case of direct discrimination, the judicial
enquiry is confined to the act or conduct at issue, abstracted
from the social setting or background fact-situation in which the
act or conduct takes place. In indirect discrimination, on the
other hand, the subject matter of the enquiry is the institutional
or societal framework within which the impugned conduct
occurs. The doctrine seeks to broaden the scope of
antidiscrimination law to equip the law to remedy patterns of
discrimination that are not as easily discernible.
F.2 Position in the United States
54. The genesis of the doctrine can be traced to the
celebrated United States Supreme Court judgment in Griggs vs.
Duke Power Co. The issue concerned manual work for which
the prescribed qualifications included the possession of a high
school education and satisfactory results in an aptitude test. Two
facts about the case bear emphasis. First, due to the inferior
quality of segregated school education, African- American
candidates were disqualified in higher number because of the
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aforementioned requirements than their white counterparts.
Second neither of these two requirements was shock to be
significantly related to successful job performance.
55. Construing the prohibition on discrimination
embodied in Title VII of the Civil Rights Act of 1964, the Chief
Justice Burger held:
"The Act prescribes not only overt discrimination but also
practices that are fair in form, but discriminatory in operation".
He went on; "good intent or absence of discriminatory intent
does not redeem employment procedures or testing mechanisms
that operate as "built-in-headwinds" for majority groups and are
unrelated to measuring job capability.
On the question of the standard of justification for
rebutting a charge of indirect discrimination, the Court held as
follows:
'The touchstone is business necessity. If an employment
practice which operates to exclude Negroes cannot be shown to
be related to job performance, the practice is prohibited.'
Griggs, therefore, laid the groundwork for the thinking
that meaningful equality does not merely mean the absence of
intentional inequality. A statutory manifestation of disparate
impact was codified in US law in the shape of the Civil Rights
Act of 1991. Section 105 of the Civil Rights Act of 1991 makes
a practice causing disparate impact a prima facie violation. The
presumption can be rebutted by establishing that the practice is
linked to the job and business. This can be overcome by a
showing of alternative, equally efficacious, practices not causing
disparate impact."
46.In the present case also, a seemingly neutral instance of discrimination
without being propelled by any intent to discriminate as such would fall squarely
within the understood definition and meaning of ‘indirect discrimination’. While
the jurisprudence on indirect discrimination is still growing, it is important to
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identify these instances of systemic and indirect discrimination, couched in
neutrality and seemingly innocent reasons perpetuated by social conditioning but
which cannot stand scrutiny before law in the teeth of the expansive substantive
equality as envisioned and envisaged in our Constitution, and to discard them
just as stark instances of discrimination. Such instances of indirect
discrimination perpetuate inequality and cripple the salient personal freedom and
autonomy available to every citizen of this country, irrespective of their personal
attributes and differences and based on variables of gender, disability, caste,
sexual orientation, religion, or any other identified site of discrimination, and it
is the solemn duty of the Court to stand the ground in fulfilment of the ideals and
guarantees and promises held out under the Constitution, with unflinching
commitment.
International law qua discrimination:
47(i).Late Justice Ruth Bader Ginsburg, Associate Judge, Supreme Court
of United States of America, quoted Sara Grimke, noted abolitionist and
advocate of equal rights of men and women, while arguing before the Supreme
Court of the United States of America in Sharron A. Frontiero and Joseph
Frontiero v. Elliot L. Richardson, Secretary of Defense, et al.32, as “I ask no
favour for my sex. All I ask of our brethren is that they take their feet off our
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necks.” The said quote was pointed out in the opening line of the decision
rendered by the supreme court of India in Nitisha33, wherein it was held that
“the evaluation criteria set by the Army constituted systematic discrimination
against the petitioners and this discrimination has caused an economic and
psychological harm and an affront to their dignity”.
(ii).Walter E. Washington, etc., et. al. v. Alfred E. Davis et al.34,
wherein, the case involves the validity of a qualifying test administered to
applicants, who are two negro police officers, alleging that the promotion
policies of the Department were racially discriminatory, which is violative of the
rights under the due process clause of the Fifth Amendment to the United States
Constitution. The test was sustained by the District Court, but invalidated by the
Court of Appeals. The Supreme Court of United States was in agreement with
the District Court and accordingly, reversed the judgment of the court of
appeals. While doing so, it was observed that “a rule that a statute designed to
serve neutral ends is nevertheless invalid, absent compelling justification, if in
practice it benefits or burdens one race more than another would be far-
reaching and would raise serious questions about, and perhaps invalidate, a
whole range of tax, welfare, public service, regulatory and licensing statutes
that may be more burdensome to the poor and to the average black than to the
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more affluent white”.
(iii).Council Directive 2000/78/EC (27 February, 2000) defines the
concept of “indirect discrimination”. In S.Coleman v. Attridge Law and Steve
Law35, it was held by the Grand Chamber, UK that “the prohibition of
harassment laid down by the provisions of the Directive 2000/78 is not limited
only to people who are themselves disabled; where it is established that the
unwanted conduct amounting to harassment, which is suffered by an employee,
who is not himself disabled is related to the disability of his child, whose care
is provided primarily by that employee, such conduct is contrary to the
provisions to the prohibition of harassment”.
(iv).The South African Constitutional Court in City Council of Pretoria
v. Walker36, while interpreting and enforcing the Constitution, has held that
“the concept of indirect discrimination,... was developed precisely to deal with
situations where discrimination lay disguised behind apparently neutral
criteria or where persons already adversely hit by patterns of historic
subordination had their disadvantage entrenched or intensified by the impact
of measures not overtly intended to prejudice them”. ... “In many cases,
particularly those in which indirect discrimination is alleged, the protective
purpose would be defeated if the persons complaining of discrimination had to
prove not only that they were unfairly discriminated against but also that the
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unfair discrimination was intentional. This problem would be particularly
acute in cases of indirect discrimination where there is almost always some
purpose other than a discriminatory purpose involved in the conduct or action
to which objection is taken”. The same was referred to by the Supreme Court
of India in Nitisha37 and Delhi High Court in Madhu v. Northern Railway38.
(v).In a recent decision in Mahlangu v. Minister of Labour39, the South
African Constitutional Court had to rule on the constitutionality of Section
1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act, 130
of 1993. This provision explicitly excluded domestic workers from the definition
of employees under the Act. This had the consequence of depriving domestic
workers access to the social security benefits contained in the legislation, in the
event of injury, disablement and death. The SACC, inter alia, rendered a finding
that the provision was hit by the constitutional prohibition on indirect
discrimination.
(vi).In Ontario Human Rights Commission v. Simpsons - Sears40 , the
Canadian Supreme Court expounded the doctrine of indirect discrimination,
while entertaining a challenge under Section 4(1)(g) of the Ontario Human
Rights Code. In analyzing whether a work policy mandating inflexible working
hours on Friday evenings and Saturdays indirectly discriminated against the
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Appellant on the basis of her creed, in that her religion required her to strictly
observe the Sabbath, the Court noted as follows:
“A distinction must be made between what I would
describe as direct discrimination and the concept already
referred to as adverse effect discrimination in connection with
employment. Direct discrimination occurs in this connection
where an employer adopts a practice or rule which on its face
discriminates on a prohibited ground. For example, “No
Catholics or no women or no blacks employed here.” There is, of
course, no disagreement in the case at bar that direct
discrimination of that nature would contravene the Act. On the
other hand, there is the concept of adverse effect discrimination.
It arises where an employer for genuine business reasons adopts
a rule or standard which is on its face neutral, and which will
apply equally to all employees, but which has a discriminatory
effect upon a prohibited ground on one employee or group of
employees in that it imposes, because of some special
characteristic of the employee or group, obligations, penalties,
or restrictive conditions not imposed on other members of the
work force. For essentially the same reasons that led to the
conclusion that an intent to discriminate was not required as an
element of discrimination contravening the Code I am of the
opinion that this Court may consider adverse effect
discrimination as described in these reasons a contradiction of
the terms of the Code. An employment rule honestly made for
sound economic or business reasons, equally applicable to all to
whom it is intended to apply, may yet be discriminatory if it
affects a person or group of persons differently from others to
whom it may apply. From the foregoing I therefore conclude that
the appellant showed a prima facie case of discrimination based
on creed before the Board of Inquiry.”
(vii).In Orsus v. Croatia41, the allegation raised by the applicants was that
they had been attending separate classes comprising only roma pupils at times
during their primary education and thereby discriminated against in the
enjoyment of that right on account of their race or ethnic origin. The European
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Court of Human Rights was of the view that “indirect discrimination shall be
taken to occur, where an apparently neutral provision, criterion or practice
would put persons of an ethnic origin at a particular disadvantage compared
with other persons, unless it is objectively justified by a legitimate aim and the
means of achieving that aim are appropriate, necessary and proportionate”.
(viii).The Supreme Court of Canada, in Action Travail des Femmes v.
Canadian National Railway Company42 analyzed the claim of woman seeking
equal employment opportunities in the National Railroad Company. In echoing
the mutually reinforcing consequences of direct and indirect discrimination
within organizational structures as a systemic feature, the Court observed as
under:
“Systemic discrimination in an employment context is
discrimination that results from the simple operation of
established procedures of recruitment, hiring and promotion,
none of which is necessarily designed to promote
discrimination. The discrimination is then reinforced by the
very exclusion of the disadvantaged group because the
exclusion fosters the belief, both within and outside the group,
that the exclusion is a result of “natural forces”, for example,
that women “just can’t do the job”(see the Abella Report, pp.9-
10). To combat systemic discrimination, it is essential to create
a climate in which both negative practices and negative
attitudes can be challenged and discouraged”.... In prescribing
remedies against systemic discrimination, the Court consciously
noted that “the remedies do not have to be merely
compensatory, but also prospective in terms of the benefit that
is designed to improve the situation in the future”. The Court
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structured the remedy as follows: “An employment equity
program thus is designed to work in three ways. First, by
countering the cumulative effects of systemic discrimination,
such a program renders further discrimination pointless....”.
(ix).The framework provided in Action Travail des Femmes43 was
followed by the Human Rights Tribunal of Canada, in National Capital
Alliance on Race Relations v. Canada (Health and Welfare)44 wherein the
Court had to examine a case against the Health and Welfare Department of
Canada for discriminating against visible minorities by establishing employment
policies and practices that deprive visible minorities (race, colour and ethnic
origin) of employment opportunities in senior management. The Court
conducted a holistic analysis of the organization by collating testimonies of
workers in the organization and by engaging experts on statistical analysis and
human resource management. The evidence of the expert on human resources
was analysed to situate systemic issues ranging from ghettoization of minorities
in Canada translating into lesser encouragement for professional ambition.
Societal impact of discrimination was evidenced in the informal staffing
decisions providing fertile ground for unconscious bias and a broader perception
of visible minorities as unfit for management. In upholding the claims of the
plaintiffs, corrective measures were prescribed to counteract the effects of
systemic discrimination in the workforce. The said decision was pointed out by
the Supreme Court of India in Nitisha.
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(x).In Abdulaziz, Cabales and Balkandali v. United Kingdom45, the
European Court of Human Rights held: "As to the present matter, it can be said
that the advancement of the equality of the sexes is today a major goal in the
member States of the Council of Europe. This means that very weighty reasons
would have to be advanced before a difference of treatment on the ground of
sex could be regarded as compatible with the Convention". Following the said
decision, the European Court of Human Rights once again observed in Van
Raalte v. The Netherlands46, that in the applicant's submission, differences in
treatmen based on sex were already unacceptable when section 25 of the
General Child Care Benefits Act was enacted in 1962. The wording of Article
14 of the Convention showed that such had been the prevailing view as early as
1950. Moreover, legal and social developments showed a clear trend towards
equality between men and women. Further reference was made to Abdulaziz47,
which stated explicitly that "the advancement of the equality of the sexes is
today a major goal in the member States of the Council of Europe" and that
"very weighty reasons would have to be advanced before a difference of
treatment on the ground of sex could be regarded as compatible with the
Convention".48 These observations were referred to by the Supreme Court in
Anuj Garg49.
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INDIAN SCENARIO:
48.In India with burgeoning population, women in general and disabled
women in particular, struggle with both the oppression of being women in male-
dominated societies and the oppression of being disabled in societies dominated
by the able-bodied. Women with disabilities in aspiring to achieve laurels in
high levels of sport competition seldom gets encouragement and assistance and
often face double discrimination associated with gender and disability. Having
disability and being in the world of sports, to which they are not at fault, are
compounded by systematic barriers associated with the brand of being female
and participating in a male dominated sports arena. At the elite level, disability
sport has grown and developed at a rapid pace unprecedented in sport history.
The Paralympic Games are the pinnacle of elite competition for athletes with
disabilities and a second largest sporting event in the world - second only to
Olympic games. Despite the accomplishments of Paralympic movement, serious
inequalities continue to exist for women and the case of the petitioner herein is a
classic example for the same. Participant numbers have traditionally been
skewed, in that two to three times more men than women compete at the
paralympic level. Professionals with the adapted physical activity field have
speculated on the barriers which exist for women with disabilities in sports. The
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barriers for participation in such momentous events include classification that
are insensitive to women. Few women involved in the power structures of the
disability sports movement and an under-representation of women athletes in
wheel-chair sport. If the potential women are given opportunities coupled with
financial support, it will be possible for them to bring more laurels to the
Country. Empowering the female athletes to be an active participant could be
achieved by providing adequate opportunities to them on par with the male
athletes. There needs to be feasible avenues for the female athletes to address
their concerns to the decision-makers and it would encourage a united political
front that would represent all female athletes, regardless of their disability level,
to achieve greater horizons.
49.There are several facets of discrimination exist to women in particular
and the Supreme Court time and again has held that such discrimination would
infringe the constitutional guarantee conferred to the women under Article 15 of
the Constitution of India50.
50.In Babita Puniya51, it was held by the Supreme Court that absolute
bar on women seeking criteria or command appointments violates guarantee of
equality under Article 14 of The Constitution of India. It was also held that both
men and women should be given criteria or command. In Nitisha52 it was held in
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para Nos.119 and 120, as follows:-
"119. Based on the above analysis, we are of the view
that the evaluation criteria set by the Army constituted systemic
discrimination against the petitioners. The pattern of evaluation
deployed by the Army, to implement the decision in Babita
Puniya (supra) disproportionately affects women. This
disproportionate impact is attributable to the structural
discrimination against women, by dint of which the facially
neutral criteria of selection ACR evaluation and fulfilling the
medical criteria to be in SHAPE-1 at a belated stage, to secure
PC disproportionately impacts them vis-a-vis their male
counterparts. The pattern of evaluation, by excluding
subsequent achievements of the petitioners and failing to
account for the inherent patterns of discrimination that were
produced as a consequence of casual grading and skewed
incentive structures, has resulted in indirect and systemic
discrimination. This discrimination has caused an economic and
psychological harm and an affront to their dignity."
51.The Supreme Court also had an occasion to consider the effect of
gender bias and discrimination in the Army Service in Union of India and
others vs. Lt. Cdr. Annie Nagaraja and others53 wherein in para No.76, it
was held as follows:-
"76. Performance at work and dedication to the cause of
the nation are the surest answers to prevailing gender
stereotypes. To deprive serving women officers of the
opportunity to work as equals with men on PCs in the Indian
Navy is plainly discriminatory. Furthermore, to contend that
women officers are ill-suited to certain avocations which involve
them being aboard ships is contrary to the equal worth of the
women officers who dedicate their lives to serving in the cause
of the nation."
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FINDINGS:
52.Sport is always regarded as a potent tool to achieve human
development such as psychological and physical rehabilitation. It is construed as
a bridge, which would associate with peace and social mobilization by providing
a physical foot point. It is an arena, where relationship can be built among the
team-mates even in the midst of adversaries in the form of competition.
Participation in any form of sports immensely benefits those with disabilities
more than those without any disabilities. If a person with disability is provided a
socially conducive atmosphere of sport, it will benefit them to develop their
skills of teamwork, communication, confidence, leadership qualities,
cooperation and respect, so that they will become members, who can contribute
to the society. It is an inexpensive form of physical therapy, which is vital for
persons with physical disabilities, who need to retain the movement as much as
possible. Pope Francis, speaking at an international conference on sport,
recognized that “sport is a human activity of great value, able to enrich
people's lives.” An important characteristic of sport, the Pope noted, is “the
beauty and joy found in sports, whether playing or watching, is something that
benefits and unites everyone, regardless of religion, ethnic group, nationality,
or disability.”54
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53.It is noteworthy to mention at this juncture that the theme designed by
the United Nations for the year 2021 is “Equality – Reducing inequalities,
advancing human rights”. Sports symbolise the spirit of brotherhood, tolerance,
mutual respect, leadership quality, command and communication, fostering the
spirit of accepting victory and defeat as one and the same. Therefore, it should
be made as a platform, where everyone can be given an equal opportunity to
prove their might without being discriminated on the ground of gender or
disability in any forms or manifestation. A sports person should not be defeated
by discriminating him/her from participating in the arena of sports, but the defeat
should be the real defeat by allowing all those, who have the potential to
participate in the sports, so that they can contribute with their spirit, body, mind
and soul ably.
54.In the instant case, the petitioner being a disabled girl, had to
overcome the psychological trauma of speech and hearing impairment. Despite
the same, she excelled herself in the events of the long jump and high jump at
State and National levels and bagged gold, silver and bronze medals, totalling
13. However, she was denied the opportunity of being participated in the 4th
World Deaf Athletics Championship, 2021, though she was qualified in the
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National Selection Test. Even after the interim order of this court, the petitioner
has been struggling to participate in the said event held at Poland, in all ways,
on account of improper and non-cooperative attitude on the part of the Sports
Council of the Deaf both in the State and Central Levels. Though faint attempts
were made on the side of the respondents denying the allegations made by the
petitioner, the same cannot be countenanced by this court. The concept of
fairness and justice, which is the virtue of all, should be crystallised in all the
spheres of human activity from education to sports to employment. If such
discriminating practices are continued, the constitutional vision of equality and
dignity cannot be achieved.
CONCLUSION AND DIRECTIONS:
55.In the light of the aforesaid detailed analysis and findings, this Court
has reached the conclusion that this is a case of discrimination based on the
gender as well as the disability, due to which, the petitioner has faced several
difficulties and barriers to participate in the international event. The State and
Central Governments, being the competent authorities to provide and ensure
support and safety to the sports women with disabilities, so as to inspire their
confidence freely and take part actively in the events at all levels, have failed to
do the same in an appropriate manner. Therefore, in exercise of the power
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conferred under Article 226 of the Constitution of India, to render substantial
justice, this court issues the following directions to the respondent authorities
for the purpose of streamlining the policy qua woman athletes with disabilities,
in consultation with experts, so as to enable them to participate in all the events
at State, National and International levels, with equality and dignity:
(i)to prevent or prohibit unfair discrimination against the women athletes
with disabilities, on one or more grounds including race, gender, sex, marital
status, ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(ii)to provide adequate financial assistance and all other requisites to the
women athletes with disabilities, so as to participate in all the events.
(iii)to follow proper selection process, so as to enable the meritorious
candidates to participate in the events.
(iv)To provide necessary training and free medical facilities to all the
women athletes with disabilities, who achieve meritorious level in the respective
sports for participation in all the international games.
(v)to provide all possible means to entertain women athletes with
disabilities to utilise their fullest potentials and capabilities so as to achieve
success in all the events.
(vi)to provide all the disabled friendly materials, clothes, prosthetics and
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other accessories that may be required by the women athletes with disabilities in
day today affairs, with incentives so as to encourage and nurture their excellence
in the respective sports and to participate in the events at all levels.
(vii)to extend the financial assistance to one of the family members, who
accompany the disabled female athletes to participate in the international games.
(viii)To give effect to the principle of reasonable accommodation by
providing all assistance that are required / requested by the females athletes with
disabilities so as to enable them to participate in the international games, on par
with males.
(ix)to ensure safety and security of the female athletes with disabilities
during their travel, irrespective of number of participants, so as to inspire their
confidence freely and take part actively in the events at all levels.
(x)to sensitize the male counter parts and inculcate the sense of equality in
their mind, so as to maintain safe environment for women athletes at all levels.
(xi)to reward all the disabled women participants in the international
games, irrespective of their achievements or otherwise.
(xii)Must ensure that all the women athletes whether with or without
disabilities, be given equal treatment on par with males, so as to enjoy full and
equal rights and freedoms and to maintain their dignity.
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56.With the aforesaid directions, this writ petition is disposed of. No
costs.
20.12.2021
rsh
Index : Yes / No
Internet : Yes / No
To
1. The Joint Secretary
Ministry of Youth and Sports
Department of Sports
Government of India
Shastri Bhavan, New Delhi - 110 001
2. The Director General
Sports Authority of India
Government of India
Jawaharlal Nehru Stadium Complex
(East Gate) Lodhi Road, New Delhi - 110 003
3. The Chairman
All India Sports Council of the Deaf
No.1-B, Institutional Area
Near Janata Flats, Sarita Vihar
New Delhi - 110 076
4. The Secretary
Department of Welfare of Differently Abled Persons
Government of Tamil Nadu
Secretariat, Chennai - 600 009
5. The Principal Secretary
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Sports Development Authority of Tamil Nadu
Government of Tamil Nadu
Jawaharlal Nehru Stadium
Periyamet, Chennai - 600 003
R. MAHADEVAN, J
rsh
WP No. 16953 of 2021
20.12.2021
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1 Wendell, Susan. “Toward a Feminist Theory of Disability.” Gender Basics: Feminist Perspectives on
Women and Men. Ed. A Minas, Belmont, California: Wadsworth Publishing Co., 1993.
2 Olenik M., Lisa, Matthews M., Joan, Steadward D., Robert. “Women, Disability and Sport”,
Canadian Woman Studies.
3 Article 15(1) Constitution of India, The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them
4 McCall “The Complexity of Intersectionality” Signs: Journal of Women in Culture and Society
(2005) 30 at 1771.
5 K.Crenshaw, Demarginalizing The intersection of Race and Sex: A Black Feminist Critique of Anti-
Discrimination Doctrine, Feminist Theory, And Anti-Racist Policies, University of Chicago Legal
Forum, Vol. 4 (1989) 149
6 Centre for Law and Policy Research: Intersectionality: A Report on Discrimination based on Caste
with the Intersections of Sex, Gender Identity and Disability in Karnataka, Andhra Pradesh, Tamil
Nadu and Kerala (2019)
7 The Contemporary Law Forum: Intersectionality in Gender- based violence (2021)
8 AIR 2021 SC 2190
9 Id
10 Directorate General for Internal Policies, Policy Department C: Citizens' Rights and Constitutional
Affairs; General equality, 'Discrimination generated by the intersection of Gender and disability' –
Study, European Parliament, manuscript completed in May 2013.
11 UN – Department of Economic and Social Affairs (Disability), (2007)
12 (2021) 5 SCC 370
13 UN Human Rights Treaty Bodies: CEDAW Committee General Recommendations (2014)
14 Conroy, E., (2016) “Aiming for Inclusive Sport: the Legal and Practical Implications of the United
Nation’s Disability Convention for Sport, Recreation and Leisure for People with
Disabilities”, Entertainment and Sports Law Journal 5(1), p.4.
15 Article 15 Constitution of India, Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth
16 Supra n.12
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17 Article 14 of the Constitution, Equality before law, The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth
Article 19 of the Constitution, Protection of certain rights regarding freedom of speech etc.
(1)All citizens shall have the right (a)to freedom of speech and expression (b)to assemble peaceably
and without arms; (c)to form associations or unions; (d)to move freely throughout the territory of
India; (e)to reside and settle in any part of the territory of India; and (f).. (g)to practise any
profession or to carry on any occupation, trade or business (2).., (3)...(4)...(5)...(6)....
Article 21 of the Constitution, Protection of life and personal liberty, No person shall be deprived of
his life or personal liberty except according to procedure established by law.
18 Part III of Constitution, Fundamental Rights, Articles 12 to 35, Art 12 - The State, Art 13 – Laws
inconsistent with or in derogation of fundamental rights, Art 14 to 18 – Right to Equality, Art 19 to
22 – Right to Freedom, Art 23 and 24 – Right against Exploitation, Art 25 to 28 – Right to
Freedom of Religion, Art 29 and 39 – Educational and Cultural Rights, Art 32 to 35 – Right to
Constitutional Remedies
19Cong. Rec. S611 (daily ed. Jan. 14, 1991) (statement of Sen. Boren)
20 Women's Sports Foundation: Women in the Olympic and Paralympic Games: An Analysis of
Participation, Leadership and Media Coverage (2017)
21 Supra n.12
22 (2019) 4 SCC 237
23 Id
24 (2008) 3 SCC 1
25 411 U.S.677 (1973)
26 433 US 321, 97S.CT.2720 at page 345
27 Supra n.24
28 id
29 (2020) 7 SCC 469
30 AIR 2021 SC 1797
31 Id
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32 411 US 677 (1973)
33 Supra n.30
34 426 US 229 (1976)
35 [2008] IRLR 722
36 (1998) 3 BCLR 257
37 Supra no.30
38 Decision rendered by the Division Bench of Delhi High Court in LPA No.640 of 2017 on 17.01.2018, 2018 SCC
Online Del.6660
39 [2020] ZACC 24
40 [1985] 2 SCR 53
41 [2010] ECHR 337
42 (1987) 1 SCR 1114
43 Id
45 [1985] ECHR 7
46 [1997] ECHR 6
47 Supra n.45
48 See also: Schuler-Zgraggen v. Swizerland, [1993] ECHR 29; and Petrovic v. Austria, [1998]
ECHR 21) Stereotype Roles and Right to Options
49 Supra n.24
50 Supra n.15
51 Supra n.29
52 Supra n.30
53 (2020) 3 MLJ 388 (SC)
54 Pope Francis: Sport Has Great Value, Must be Honest, VATICAN RADIO (May 10, 2016)
http://en.radiovaticana.va/news/2016/10/05/pope_francis_sport_has_great_value_must_be_honest/12 63027
https://www.mhc.tn.gov.in/judis
References:
Atrey, Shreya: Intersectional Discrimination , Oxford University Press (2019)
Smith, Ben: Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical
Perspective , The Equal Rights Review , Volume 16, (2016)
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