Reading Swaraj into Article 15 — A New Deal for All Minorities

(2009) 2 NUJS Law Review 419-432

14 Pages Posted: 10 Jan 2018  

Tarunabh Khaitan

University of Oxford - Faculty of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group; The University of Melbourne - Law School

Date Written: 2009

Abstract

The judgement of the Delhi High Court in the Naz Foundation case goes beyond merely decriminalising homosexuality. The progressive reinterpretation of Article 15 of the Constitution has brought out its distinct character, which has for long been buried under Article 14 and the general promise of equality it offers. Four key innovations have been introduced by this reformulation of Article 15, which are likely to give unparalleled protection to all minorities from discrimination. These innovations are 1) the introduction of ‘strict scrutiny’ to review protection under Article 15, 2) the understanding that not only the specified grounds but also grounds analogous to them are to
be protected, 3) protection against discrimination not only from the state but also private parties and 4) protection from not only direct but also indirect discrimination. The author argues that locating of the right against discrimination in the bedrock of Swaraj or personal autonomy is the crucial tool for justifying the introduction of these innovations. The author concludes that this innovative reinterpretation of Article 15 is likely to give greater credence to antidiscrimination law in the country, bolstering it further which is likely to benefit all minorities - thus reaffirming the countermajoritarian role of the judiciary.

Suggested Citation

Khaitan, Tarunabh, Reading Swaraj into Article 15 — A New Deal for All Minorities (2009). (2009) 2 NUJS Law Review 419-432. Available at SSRN: https://ssrn.com/abstract=3096999

Tarunabh Khaitan (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

The University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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