In a rapidly evolving world with ever-widening inequalities, one is bound to ask if equality law is able to keep pace with the challenges of our times. To explore these pressing issues, I sat down with Professor Sandra Fredman, a globally renowned scholar and expert in equality law – who teaches at the University of Oxford â during her recent visit to India. We spoke about the current state of equality law, the application of her model of Inclusive Equality in various jurisdictions and the role of proactive duties and positive obligations in advancing substantive equality. We also touched on the nuances of affirmative action, the importance of addressing structural barriers and the critical role of statutory watchdogs in enforcing equality measures.
Rahul Bajaj: Thanks very much, Professor Fredman, for agreeing to speak with me and having this conversation. I thought it would be really good for us to discuss some of the themes of this conference and also your work on anti-discrimination law more broadly. I plan to publish our conversation so that it reaches a large number of people. I wanted to get your views on the following questions.
Q: I wanted to ask you about the theme of this conference itself: âIs there hope for equality law?â Do you think that equality law holds the potential to deal with the kinds of challenges we face today? What are the bright spots and causes of concern that you see on the horizon?
Professor Fredman: Well, of course, there is hope, and there has to be hope; otherwise, we cannot continue.
It’s true that we have gone backward in some very worrying ways. Inequalities in the world have been widening exponentially, particularly since COVID. At the same time, the US Supreme Court is backtracking on important progress made in previous decades. Having accepted affirmative action, at least in some contexts, the US Supreme Court has gone right back to saying itâs illegal to treat a white man less favorably than a black person and has struck down all kinds of affirmative action.
On the other hand, we have come a long way in developing the concepts and principles of the right to equalityâfrom a formal concept, which states that everyone must be treated equally regardless of their status, to one that recognizes the structural barriers. This more developed understanding of equality recognizes itâs not just your status or identity that should matter; itâs the disadvantage attached to it. Inequality and discrimination are embedded in the structures of society, so the right to equality should be broader than individual acts of prejudice.
Indian jurisprudence has both bright spots and causes for concern. The Indian constitution was always ahead of other jurisdictions, in recognizing the group nature of inequalityâin seeing reservations as a way of advancing equality rather than as a breach of equality. On the other hand, in Indian law too much weight is put on reservations on their own as a tool, while there is no comprehensive anti-discrimination law. There are pockets of anti-discrimination law, but Indian law would benefit from a comprehensive anti-discrimination provision which could complement the reservation policy. .
At the end of the day, the real hope, I think, lies in the commitment and energy of researchers like yourself and the many others who have come together in this conference, who put in a lot of passion, thought, and commitment to continually developing the law, even in the face of setbacks.
Q: I wanted to ask you about the fourfold model of inclusive equality that you developed a number of years ago, which has also been cited by the Indian Supreme Court. Iâd like to know your assessment of how Indian courts have applied that framework in concrete cases and controversies, and how that compares and contrasts with approaches in other jurisdictions that you study.
Professor Fredman: Perhaps I should first say something about the four-dimensional understanding of the right to equality. The starting point is the recognition that the right to equality should be more than simply treating likes alike. This seemingly appealing notion assumes that itâs simply irrational to treat a person differently or less favorably on grounds of their race, caste, or gender. Therefore, the assumption is that if you strip away that classification, youâll have an abstract individual who can entirely be judged on their merit. But of course, that doesnât match the social reality. Merit is very dependent on background advantage or disadvantage, for example through schooling. In addition, peopleâs identity can be a rich source of dignity in their lives. It should be possible to maintain that identity without forfeiting the right to be treated equally. For example, women shouldnât have to conform to a male norm in order to be treated equally.
That realization leads to what I call the first dimension of substantive equality, which is the redistributive dimension: we need to asymmetrically redress the disadvantage attached to a certain identity rather than try to eliminate the identity itself. This means that reservations or affirmative action are means to achieve equality, not a breach of equality.
But this is not sufficient on its own. Discrimination is also caused by stereotyping, prejudice, stigma and violence. This is the second dimension, what I call the recognition dimension. This is similar to dignity, which is often regarded as the basis of equality. But dignity is a very vague term. This dimension is more specific, referring to stigma, prejudice, stereotyping, and even violence based on identity, as seen in gender-based violence, racial violence, and so on.
There is a close connection between this dimension and the first dimension, disadvantage attached to status. For example, stereotyping people with disabilities might lead to them being denied employment or places in higher education. For women, stereotyping as primary homemakers, child-carers, and child-bearers means that their work in the workforce is undervalued and paid less, often resulting in precarious employment. So the disadvantage attached to that status is intimately connected with the prejudice and stigma that continue to contribute to it.
But we cannot stop there. When we talk to people about their experiences of discrimination, social exclusion, political exclusion, and lack of voice often really matter. A long time ago, US scholar John Hart Ely said that courts and human rights should come into play when the political process has failed. In those contexts, we need to ensure that the voices of those excluded are incorporated. In the disability context, ânothing about us without usâ is very crucial, and that applies across the board. Thatâs the third dimension, which is the participative dimension.
The fourth dimension returns to what I said before: itâs not just about individual acts of prejudice; discrimination is built into the structures of society. This is most salient in the context of disability, where the built environment is so disabling for so many people, rather than the impairment itself necessarily creating the disability.
So when we put these four dimensions together, we get the first, which is to redress disadvantage; the second, which is to address stereotyping, stigma, and violence; the third, which is the participative dimension; and the fourth, which is to address structural barriers. All of these together must be optimized, which is my four-dimensional view of substantive equality.
You ask how Indian jurisprudence has incorporated this framework. I must acknowledge that Indian jurisprudence is quite massive, with many judgments from different judges. So I thought we could focus on the Lt. Col Nitisha v. Union of India judgment. Although the facts may seem complicated, they can be summarized as follows: women in the armed forces were initially given ten-year contracts, and when the army decided to move to permanent contracts for women, the women had to fulfill certain tests. These tests were very much modeled on traditional criteria, such as how long they had worked and how much fitness training they had undergone. Although these applied to men as well as women, women were disadvantaged because of their previous experience of discrimination.
In this case, the court cited the four dimensions and recognized, applying the first dimension, that equal treatment can entrench disadvantage if it doesnât take into account the previous disadvantage women faced before coming into the workforce. It also incorporated the second dimension, recognizing that womenâs limited ability to meet the criteria was due to the stereotyping of women as primarily homemakers. Women were initially kept out of permanent commissions due to concerns that they might get pregnant, have children, and leave the military. This was a common concern, along with the lack of facilities like toilets for women.
The court recognized these issues and incorporated the doctrine of indirect discrimination into Indian law. But I think it could have gone further in recognizing all four dimensions, particularly the fourth dimension, the transformative dimension. Although it mentioned systemic discrimination, and it required the removal of the specific criterion that disadvantaged women, it didnât address the ongoing structural impediments for women in the military, such as ongoing stigma, harassment, sexual harassment, unequal pay, or the reasons why it might be difficult for women to work full-time. These challenges relate to the division of labor and the personal lives of women, and reflect all four of the dimensions. It would also have been helpful for the Court to pay more attention to the third dimension, the participative dimension, by including womenâs own voices. So although the court mentioned the structural dimension of equality and talked about systemic equality, it didnât go far enough in addressing what these women actually want in terms of their needs. Indirect discrimination is a good step forward, but in my view, it doesnât sufficiently incorporate all aspects of the four dimensions, which would lead to more far-reaching principles, remedies, and interventions by the court.
So a key contribution of the four-dimensional approach is to go beyond a remedy which simply allows these women in this context to access permanent commissions to addressing the broader ability to restructure and deal with the underlying issues.
Q: The next issue I wanted your thoughts on is related to proactive duties and positive obligations. In your book, you emphasize the importance of not just dealing with discrimination issues in an adversarial way when a specific case arises but also focusing on the structural issues faced by disadvantaged groups.
In the Indian context, there are many statutory watchdogs designed to address issues faced by marginalized groups, such as the National Commission for Women, the National Commission for Protection of Child Rights, and the Disability Commissions set up under the Rights of Persons with Disabilities Act, 2016. Every state has its own Disability Commission, and there is a Chief Commissioner at the central level. These bodies can adjudicate adversarial issues whenever they arise, but they also have broader powers to take suo motu cognizance of issues and make advisory recommendations. Based on your engagement with proactive duties and positive obligations, how can these statutory watchdogs better discharge their functions in this department?
Professor Fredman: This is a really important development and one that needs a lot more attention. As you said, we need to look prospectively and not always deal with individual complaints retrospectively after the event. Proactive duties are different from affirmative action and reservations; they involve a statutory body, like the one you mentioned, or potentially all public bodies, having the duty to scrutinize new policies as they are being formulated, to examine their impact on discrimination and inequality, and then redesign them to mitigate that impact.
The four-dimensional approach is equally useful here because it specifies the aims of the proactive duty. The four-dimensional approach is not only intended for court proceedings, as courts have limitations in terms of legitimacy and capacity, but also to spotlight the issues that need to be considered by public bodies and employers more generally. Often the duty is phrased as a duty is to advance equality of opportunity, but thatâs quite vague. The four-dimensional approach gives you a systematic way of assessing a policy. What it requires is scrutinize a policy to determine whether it meets all the four dimensions, namely: Does it redress or entrench disadvantage? Does it address stigma, prejudice, stereotyping and violence? Does it give voice to those who are excluded? And does it work towards restructuring or entrenching the structural barriers? Depending on the answers to these questions, the proposed policy must then be remodelled to be sure it achieves all four of these dimension.
Proactive duties work particularly well in the disability context. There should be an impact study of any plan or policy to determine what it means for disabled people, whether in terms of the built environment or other issues that arise. This is not to say a policy can ever perfectly meet all these dimensions, but that they should be taken into account. It is worth stressing that in this context, the third dimension, participation, is extremely important. Itâs not just about top-down decisions; itâs about consultation, involving the people who really know best what they need, listening to their views, and taking them seriously.
Proactive duties need clear compliance strategies setting out the remedies or actions needed to ensure that these things happen. In the UK, proactive duties often become mere gestures; public bodies state they have followed the requirements by simply ticking the relevant boxes, without necessarily acting on them. So I think the next phase should focus much more on ensuring that, if you donât comply, you are required to produce a plan of action, and implement the plan. Remedies need to be substantial and deterrent. Government contracts, for example, are a powerful means of ensuring compliance. Employers should take these things into account as a precondition for getting government contracts. This approach was successful in both the US and Northern Ireland. IN Northern Ireland, employers were required to improve the ratio of Roman Catholics to Protestants in the workforce. Roman Catholics had been the disadvantaged group, and employers could not access government contracts unless they addressed this imbalance. It was a really effective approach, and we found this in the United States as well.
A very good recent example comes from the EU, which recently passed a new directive on the Gender Pay Gap. It states that if there is too wide a gender pay gap, the employer needs to produce and implement a plan to address the gap, and that plan should be participatory.
You also asked about commissions. Commissions can be very effective if they have the right powers, resources and skills. In particular, for proactive duties, the Commission needs to interact with the employers and public or private bodies that have the power to bring about change, rather than always expecting the victim to bring a complaint against a much more powerful entity. If the commission can engage in discussionsânot in an adversarial way, but in a much more collaborative mannerâon how to bring about change, then I think we might be able to make progress. This is actually one of the areas I find useful and hopeful.
Q: How important is the “stick” aspect of the carrot-and-stick approach? In the context of disability rights law in India, we often talk about how the law is not well-implemented, and a large part of the reason is that it does not envisage the imposition of heavy penalties, unlike, say, the ADA (Americans with Disabilities Act), where there are instances of very heavy penalties being imposed in cases of violations. In your experience, how important are penalties in restructuring behavior?
Professor Fredman: I think that for proactive duties, the “stick” is very important but it should not be the ultimate deterrent rather than the first line of implementation. Iâm not saying that implementation should be voluntary because we know that voluntary codes donât work. What should happen is what has been called a âregulatory pyramidâ , where the focus is on trying to work with bodies, knowing that if they donât cooperate, further down the line, there will be some kind of penalty. Also a purely adversarial approach can lead to more entrenched positions. But the penalty has to be smart. Sometimes, bodies are big enough and powerful enough to absorb monetary penalties and just factor that into their balance sheets.
However, losing a lucrative contract might be a smart penalty. We can also experiment with other penalties, like bad publicity and shaming, to the extent that bodies are susceptible to that. But at the end of the day, there has to be a penalty. In the intermediate stages, regulators should work with bodies to bring about change. There might be ways to make things happen without making the other side very defensive and avoiding the need for change. For disability, there might be creative uses of subsidies or tax reliefs, ways of spreading the cost because itâs a community issue and a community responsibility. So there may be some creative ways of spreading the costânot just for the worker or the employer but more broadly across society, perhaps through subsidies to change the built environment and other structural changes.
Q: Even in the context of reasonable accommodations, for instance, private sector employers might say, âIf I have to hire an assistant for a blind person, itâs like hiring two people for the price of one, and itâs costly,â and so on. This results in many people not hiring at all. Perhaps state support or tax concessions could help, but while the Act does talk about this in India, it hasnât been concretely operationalized yet.
Professor Fredman: But I think thereâs also the message that this is not only for this person; itâs for everyone. If you make the built environment more accessible, youâre making it more accessible for everyone, like children in push-chairs. Itâs good for society because so many people have talents that can be excluded from work because of these barriers. So everyone benefits, not just the person with disabilities.
Q: The last thing I wanted to discuss is to get your inputs on affirmative action, which is a very contentious issue in India. Caste is, of course, a big issue where the constitution provides for reservations based on SC/ST status and affirmative action measures for women. Opinion in the country is divided more broadly as to whether affirmative action measures are still needed or not, at least on the basis of caste. Some think that it has outlived its utility, while others believe that the discrimination these marginalized communities have faced has centuries of history behind it, and therefore canât be undone in 60-70 years.
In the context of disability, this has played out very sharply in recent times, where an incident came to light of somebody faking their disability and thereby getting a post in the coveted civil services. Some senior bureaucrats have not only called for curbing misuse but have even suggested reconsidering whether reservations for persons with disabilities should continue. Whatâs your opinion on the effectiveness or need for reservation measures?
Professor Fredman: I think affirmative action measures are important and have their place. You canât expect people who have faced centuries of disadvantage, or current disadvantage, as is the case with women and persons with disabilities, to compete equally for very competitive jobs because theyâre starting from a far behind position. So affirmative action and reservations definitely have a place. Theyâre necessary not only because of the first dimension of redistribution but also because of the second dimension. Even if, as an adult, youâve improved your socio-economic position, youâre still likely to suffer from stigma and stereotyping related to your caste. So reservation plays a role.
The point is that the other dimensions need to be taken into account when designing reservations so that they donât increase stigma. Just because some people say, âOh, this person just got it because of their caste identity, not because of merit,â doesnât mean we shouldnât have reservations. It just means they should be designed properly. The right kind of education and message should accompany reservations, emphasizing that merit is very much a result of background and privilege. Merit isnât just a technical term; it depends on all the things that went into your background. If you come to a position without having had those opportunities, you should be given an opportunity, but not just the place. There should be built-in training and ways to help people overcome those previous obstacles.
So, the first point is that reservations have a place, but they should be properly designed. Itâs also important to recognize that if we look from the structural dimension perspective, reservations can only change the structure of inequality to a small extent. There are inevitably limited resources, and if we are not increasing the pool of public employment places or places in educational institutions, we can only make a small impact on improving the position of people from excluded groups. We are not changing the structures which perpetuate their exclusion. So reservations need to be complemented by other measures, such as much better education, addressing discrimination in education and healthcare, and providing quality health and education for everyone, along with a very good social security system.
Regarding the person who faked a disability, there will always be hard cases. Itâs similar to discussions about welfare benefits or tax evasion. Just because a large corporation avoids taxes, that doesnât mean the tax rules are wrong. The person who manipulated the system is wrong, and maybe the rules need to be better enforced, but itâs wrong to generalize from that act. Itâs often just a hook for people to find a way to challenge the entire system. So I think reservations are very important in context, but itâs crucial to recognize that the number of public employment places in India is minuscule, and the number of people who want those positions is huge. To achieve equality in employment, we need to address quite foundational issues.
Rahul Bajaj: Thank you.