Introduction
As a concept, intersectionality has come a long way since Kimberlé Crenshaw introduced it in one of her seminal works. Intersectionality implies that the disadvantage born out of people belonging to multiple disadvantaged groups is intersectional, i.e. it is both similar and different from the disadvantage suffered by each member of the group. Notably, Shreya Atrey has used intersectionality to analyse the Indian constitutional safeguards against discrimination.
Contrary to the concept of intersectionality, Indian jurisprudence had evaluated discrimination as a disadvantage along a single axis for a long time, failing to recognise the multiple facets of one’s identity. This position was affirmed in Air India v Nergesh Meerza where the Court held that the word ‘only’ in Article 15 implies that discrimination should be based solely on one of the enumerated grounds. If there are other considerations involved, then such discrimination will not be hit by Article 15. It was only in the case of Navtej Johar v UOI that the Supreme Court (‘SC’) took a step towards incorporating intersectionality in the constitutional guarantee against discrimination. However, the SC merely mentioned intersectionality and did not provide any substantive meaning to it. To begin with, Navtej was not even a case of intersectionality. The petitioner’s claim was based on discrimination against sexual orientation rather than the intersection of multiple identities. Thus, Navtej only acknowledged intersectionality. Its reasoning did not give meaning to intersectionality.
In Patan Jamal Vali v Andhra Pradesh, the SC moved on from merely ‘acknowledging’ to explaining what intersectional analysis of discrimination is. Unfortunately, however, by citing legal technicalities and precedents, the Court retreated to a single-axis analysis of the provisions of the SC and ST (Prevention of Atrocities) Act, 1989. The petitioner was denied relief under the Act because the court failed to apply intersectional analysis to the facts of the case. Therefore, while Patan Jamal Vali explained the ‘what’ of intersectionality, it did not explain the ‘how’ of intersectionality.
Thus, the SC’s engagement with intersectionality, although welcomed, has been unsatisfactory. In this light, the Madras High Court (‘HC’) in the case of M. Sameeha Barvin v Joint Secretary has taken a giant leap towards realising the goal of intersectionality. The case revolves around the discrimination suffered by a disabled female athlete while participating in the 4th World Deaf Athletics Championship.
In this piece, I argue that the M. Sameeha Barvin judgment is an instructive manual on ‘how’ to recognise and redress intersectional discrimination through the constitutional scheme. I argue how M. Sameeha Barvin locates intersectionality within the spirit of the Constitution without being constrained by the text. Thereafter, I demonstrate how the Madras HC has viewed discrimination through the lens of intersectionality. This is in stark contrast with the single-axis understanding of discrimination.
I argue that the Madras HC has given effect to intersectionality through three mechanisms. First, the Court gives effect to the concept of intersectional integrity. Second, the Court moves away from a comparator analysis of discrimination and adopts a substantive understanding of discrimination. Third, the Court awards an ‘intersectional’ remedy intending to transform the structures of power that perpetuate intersectional discrimination. I do not argue that the Court in M. Sameeha Barvin gave birth to these three mechanisms. These concepts have been recognised in prior judgments of the SC as well. However, the Madras HC’s simultaneous use of these mechanisms sets an example of how courts can grant substantive relief while dealing with cases of intersectional discrimination.
Locating Intersectionality: Going Beyond the Text
The text of anti-discrimination guarantees in the Constitution is relevant for interpreting discrimination through the lens of intersectionality. The way anti-discrimination guarantees are worded can favour an interpretation that acknowledges multi-ground discrimination.[i] In the Indian Constitution, the word ‘only’ as used in Article 15(1) became a roadblock to intersectionality. In Nergesh Meerza, ‘only’ was interpreted to indicate that discrimination is possible if it is solely based on one of the grounds enumerated in Article 15. If the discrimination is coupled with other considerations or other grounds, then it will not be hit by Article 15. Thus, the text of Article 15 did not make way for a multi-dimensional understanding of discrimination. Another problem with Article 15 is that it appears to enumerate an exhaustive list of disadvantaged identities. An intersectional understanding of discrimination, however, is premised on an expansive understanding of disadvantaged identities. This is because discrimination is not limited to just the five grounds enumerated under Article 15.
If the Nergesh Meerza interpretation of Article 15 is followed, then the State can always claim that the alleged discrimination is also based on ‘other considerations’ and not solely on Article 15 grounds. This peril was recognised by Chandrachud J. in Navtej Johar due to which he disfavoured the Nergesh Meerza interpretation of the word ‘only’. However, Chandrachud J. did not provide any alternate interpretation of the word ‘only’ and merely introduced the concept of intersectionality. Nor did Chandrachud J. explain how Article 15 can be re-interpreted to redress intersectional discrimination. Thus, the textual interpretation of the anti-discrimination guarantee under the Indian Constitution has been unfavourable to intersectionality.
Notably, M. Sameeha Barvin goes beyond the text of the Constitution to find the legal basis of intersectional discrimination. The Madras HC relied on Patan Jamal Vali where it was observed that the fundamental anti-discrimination guarantee of the Constitution allows for a holistic understanding of discrimination based on intersectionality. Unlike Patan Jamal Vali, however, the Madras HC did not stop at merely acknowledging the need for an intersectional analysis of discrimination. The HC went ahead and applied an intersectional analysis to the facts of the case.
In Sameeha Barvin, the petitioner, a female disabled athlete , faced discrimination at the intersection of two identities: gender and disability. However, the latter does not appear as a ground enumerated under Article 15. While it has been argued that disability should be included as a specific ground under Article 15, the Madras HC did not view this as an impediment. The Court acknowledged the need for a constitutional recognition of intersectional discrimination. Even though Article 15 does not mention disability as a ground, the guarantee of non-discrimination on grounds of discrimination is embedded in Articles 14, 19, and 21 of the Constitution. The court relied on Vikash Kumar v UPSC, where it was held that the Rights of Persons with Disabilities Act, 2016 was a manifestation of this constitutional guarantee against discrimination on disability. Thus, the Madras HC’s analysis implies that merely because Article 15 does not mention disability, the Constitution is not silent on discrimination perpetuated on grounds of disability.
Madras HC’s judgement does not view Article 15 as a complete code on discrimination. The broad constitutional guarantee against discrimination is enshrined in Article 14. Article 15 is illustrative and not exhaustive of this constitutional guarantee. This position was also reflected in Indra Sawhney v UOI. Such an interpretation opens the possibility of recognising discrimination experienced by people belonging to multiple disadvantaged groups that may or may not find an explicit mention within the Constitution.
Till now, I have focused on how the Madras HC located intersectionality in the spirit of the constitutional guarantee against discrimination. The text of Article 15 has been subject to much criticism post Nergesh Meerza, yet, the Court did not limit itself to the text of the Constitution. However, recognising intersectional discrimination within the Constitution by itself does not explain the unique disadvantage suffered by the claimant. In addition to recognising intersectionality, M. Sameeha Barvin puts intersectional analysis of discrimination into practice which the SC failed to do in Navtej and Patan Jamal Vali.
Putting Intersectionality into Practice
Admittedly, M. Sameeha Barvin is not the first judgment to recognise intersectionality. Even Chandrachud J. in Navtej Johar stressed on the need for an intersectional understanding of discrimination within the constitutional scheme. However, M. Sameeha Barvin further cements the concept of intersectionality and locates it beyond the text of Article 15. While there has been a sufficient scholarly critique of Article 15 and how it must be reinterpreted to incorporate intersectionality, the Madras HC does not view Article 15 as an impediment to intersectionality. This is a step forward from Navtej Johar.
M. Sameeha Barvin marks a welcome shift from the single-axis framework of analysing discrimination which was prevalent in the Indian judiciary. There are three aspects of the court’s analysis of discrimination that enabled it to practice intersectionality: first, intersectional integrity, second, shift from a comparator analysis of discrimination, and third, intersectional remedy that is transformative. These aspects are relevant because, while intersectionality has been praised as a theory, scholars have argued that incorporating intersectionality in discrimination law and putting it into practice is a difficult task.[ii] I argue that the application of these three aspects can serve as a way to make intersectionality possible.
Intersectional Integrity
The concept of integrity is at the heart of intersectional discrimination. Integrity means that people’s identities are viewed as a whole instead of viewing their identity as an additive combination of multiple disadvantaged identities. For instance, as Crenshaw put it, being a black woman does not mean that she faces racial discrimination plus sex-based discrimination. The racism suffered by her cannot be compared to the racism suffered by a black man. Similarly, the sexism suffered by her cannot be compared to that of a white woman. In that sense, her experience is not a summation of the experience of a black man and white woman. Rather, she faces intersectional discrimination as a black woman. The concept of integrity is in contrast to the single-axis framework of discrimination where the court narrows down its analysis to one ground.
Notably, the SC in Patan Jamal Vali recognised Atrey’s conceptualisation of intersectional integrity as relevant to its discrimination analysis. The Madras HC takes the concept of intersectional integrity forward. On the face of it, the claim of discrimination in M. Sameeha Barvin appears to be sex-based. The petitioner was initially not selected for the Athletics Championship despite having cleared the selection criteria. The respondents reasoned that they did not want to send a lone female member as part of the contingent. Thus, the case fell squarely within the ground of sex-based discrimination under Article 15(1). Further, the petitioner was harassed by the authorities who threatened her and withheld her passport.
If the Madras HC were to operate on a single-axis framework of discrimination, it could have framed the petitioner’s case as another situation of sex-based discrimination. The Court, however, did not separate the sex-based identity of the petitioner from her disability. It recognised that the discrimination faced by the petitioner is different from that faced by able-bodied female athletes because of her disability. Thus, the Court’s analysis highlights that even if one of the grounds under Article 15(1) is made out, this does not mean that the Court’s inquiry should be limited to that one ground. Therefore, the first step towards putting intersectional analysis of discrimination into practice is to view the petitioner’s identity as a whole.
Lack of a Comparator Analysis of Discrimination
In India, the understanding of discrimination is largely driven by a comparative analysis. A comparator analysis implies that the claimant is compared to a hypothetical person who is similarly situated in every way except for the alleged ground of discrimination. If a female asserts discrimination on the grounds of sex, then her situation would be compared to that of her male counterpart. If the male counterpart (the comparator) is unjustifiably better off than the claimant, then the court concludes that there is discrimination.[iii] For instance, in Nergesh Meerza, the employment conditions of the female cabin crew were compared to those of the male cabin crew because sex-based discrimination was alleged.
However, the merits of a comparator analysis are limited to a single-axis claim of discrimination. Comparator analysis can be a roadblock to understanding intersectional discrimination.[iv] This is because when discrimination is alleged on multiple grounds, it will be difficult to find a comparator who is similarly situated but for the grounds on which discrimination is alleged. For instance, in M. Sameeha Barvin, the petitioner is facing discrimination on grounds of both gender and disability. Comparing her situation to a male able-bodied person may not explain the discrimination faced on grounds of disability. This is because a male able-bodied person is also used as a comparator in claims of sex-based discrimination. There would be no difference in the comparator used for a single-axis claim based on sex and an intersectional claim based on sex and disability. Thus, comparator analysis is of not much help in understanding intersectional discrimination.
Fortunately, the Indian jurisprudence on discrimination is moving away from a comparative understanding of discrimination to a more substantive one. A substantive conception of discrimination allows for the recognition of the unique harm suffered by a person belonging to multiple disadvantaged groups.[v] This cannot be achieved through a comparator analysis because such an analysis measures the magnitude of harm experienced by a claimant in relation to the experiences of a comparator. In Nitisha v UOI, the SC recognised the need to shift to a substantive conception of discrimination which results in the subordination of disadvantaged groups. A substantive understanding of discrimination focuses on what constitutes disadvantage in itself rather than in relation to what is experienced by a comparator. Sandra Fredman explains that anti-discrimination is intended to redress the stigma, stereotyping, humiliation, and violence that can be experienced regardless of relative disadvantage.
M. Sameeha Barvin adopted this substantive understanding of discrimination. The court acknowledged the stigma that disabled women face which is attributable to culturally dominant discourses on ‘normal bodies’. Further, the court recognised that disabled women face several barriers while participating in sports. Thus, the government is obligated to facilitate the participation of such women by providing financial and infrastructural support instead of citing safety concerns as a reason for disallowing participation. This is the participative dimension of anti-discrimination as per Fredman. The disadvantaged groups must be enabled to participate in social activities on equal terms. Thus, the court stressed on how the respondents’ conduct was a manifestation of the stigma and barriers to participation that disabled women suffer.
However, the quest for realising the goal of intersectionality does not end at recognition. Another dimension of anti-discrimination in Fredman’s framework is that of transformation. The objective of anti-discrimination is to change the structures that perpetuate such discrimination.[vi] I argue that M. Sameeha Barvin illustrates how courts can grant remedies to redress intersectional discrimination.
Awarding Intersectional Remedies
The goal of intersectionality is ultimately to initiate structural change in systems of disadvantage and power. Ideally, therefore, remedies in a claim of intersectional discrimination should be transformational and not limited to the case of the claimant. However, remedies in adjudication are generally individualistic such as damages, injunction, penalties, etc.[vii] In such a scenario, courts need to move beyond an individualistic understanding of discrimination. Structural remedies cannot be a mere monetary figure. The remedy should be framed such that it recognises the uniqueness of intersectional discrimination and attacks the structures that propogate such discrimination.[viii]
M. Sameeha Barvin looks at the broader impact of intersectional discrimination on grounds of gender and disability. The Madras HC acknowledged that the case was not limited to only the petitioner. The remedy granted cannot be narrow and must address the issues faced by disabled women in sports. M. Sameeha Barvin lives up to this commitment by issuing directions to the respondents. The directions address both dimensions of disability and gender that form the basis of discrimination in this case.
Firstly, qua disability, the Court directed the respondents to provide adequate medical facilities and financial assistance. Further, the respondents were directed to provide disabled-friendly accessories and prosthetics. Secondly, qua gender, the Court directed the respondents to ensure the safety of female disabled women athletes while participating in tournaments. Further, the respondents must sensitize the male athletes to maintain a safe environment for women athletes.
The HC’s directions also acknowledge the unique intersectional discrimination suffered by disabled women athletes. The respondents were directed to ensure full participation of such athletes in sports by securing financial assistance, reasonable accommodation, and medical facilities, and by prohibiting discrimination. Thus, the court recognises and redresses the discrimination suffered by these athletes as women, as disabled persons, and the intersectional discrimination suffered on account of membership to both these disadvantaged groups. M. Sameeha Barvin illustrates what transformative remedies for intersectional discrimination can look like.
Conclusion
I have argued how M. Sameeha Barvin is an instructive judgment on how to put intersectionality into practice. The Madras HC has come a long way in explaining ‘how’ to apply an intersectional analysis in instances of discrimination. The judgment did not focus solely on either disability or gender. Rather, the judgment acknowledged the uniqueness of discrimination faced by an athlete who stands at the intersection of these two disadvantaged groups. While the judgment is a remarkable step towards the goal of intersectionality, the Indian judiciary still has a long road ahead. The importance of intersectional analysis is not just limited to discrimination law. It extends to criminal law, civil law, and other legal disputes. In this light, the intersectional analysis in M. Sameeha Barvin should serve as a guide.
[i] Shreya Atrey, Intersectional Discrimination (1st edn, OUP 2019) 142.
[ii] Atrey(n 1)2.
[iii] Atrey (n 1) 173.
[iv] ibid.
[v] Atrey (n 1) 166.
[vi] ibid 733.
[vii] Atrey (n 2) 197.
[viii] ibid 203.
The Author is a third-year student of National Law School of India University, Bengaluru.
Constitutional Law Society 
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