Equality Jurisprudence Research Articles

Substantive Equality and Its Remedial Consequences

In ‘Equality, Equity, and Algorithms: Learning from Justice Rosalie Abella,’ Martha Minow illustrates the practical import of Abella J’s equality jurisprudence by way of a contrast to US anti-discrimination law. Whereas US anti-discrimination law deploys a largely formal conception of equality focused on discriminator conduct, Abella J’s jurisprudence deploys a contextual and impact-centred conception of substantive equality. After highlighting key philosophical differences between these two conceptions of equality, this article considers whether substantive equality’s focus on impact, in contrast to the US focus on conduct, limits the law’s potential to condemn discrimination as a serious wrong.

The Possibilities of Anti-Colonial Constitutionalism – Commentary on State of West Bengal v. Anwar Ali Sarkar and others AIR 1952 SC 75

The case of Anwar Ali Sarkar has been a founding precedent for equality jurisprudence in India and elsewhere. The case is most cited for the two-step reasonable classification test. Yet over the years, it has become increasingly clear that there are limitations to the test as a doctrinal framework to adjudicate equality. This article is a comment on Tarunabh Khaitan’s accompanying rewritten judgment on Anwar Ali Sarkar, which seeks to offer a more robust doctrine of equality grounded in the anti-colonial character of the Indian Constitution. In this piece, I locate the original judgment in its historical and socio-political context to understand the possibilities of building an anti-colonial jurisprudence of equality for and of the Indian Constitution, and to evaluate the differences between the original and rewritten judgments. I argue that the rewritten judgment offers a more robust defence of equality, in line with strands of anti-colonial ideas that shaped the framing of the Indian Constitution, as well as offering a restrained method for judicial interpretation that acknowledges historical context while centering the interpretation of law and rules.

Book Review: Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders

Book Review: Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders

Equality for Women: The Constituent Assembly Debates and the Making of Equality Jurisprudence by and for Women

This article explores how 15 women members in the nearly all-male constitution-making process contributed to crafting of sex equality in India’s Constitution. Women members, opposed to positive discrimination and having faith in personal merit and ability to overcome odds, asserted their voice in India’s Constituent Assembly to redress women’s subordination caused by socio-religious androcentric practices, customs and laws. But the outcomes depended upon the religio-masculine complex which never permitted the issue of gender inequalities to take centrestage in the constitution-making process. However, for women members, as evident from this enquiry, the mere removal of sex as a constraint upon them was of paramount importance as merit, ability and competence could further help them achieve progress and equalisation. Second, what appears is that in the women's imagination, the guarantee of equality being crafted included an eradication of historical gender inequalities.

Gender Equality Redux

This article offers a broad review of gender justice jurisprudence in India between 1993 and 2022. In analysing some of the landmark judgements on women's rights in the intervening years, the authors find the judicial approach to gender equality uneven and at times, conflicting. Despite the significant advancements in the jurisprudence of gender equality and dignity, discrimination and inequality persist on a staggering scale. The article argues for the continued importance of subjecting equality jurisprudence to feminist critical inquiry, which pays attention to the deeper structural and systemic issues that impact gender equality.

Beyond binary discrimination: wading our way through the pool of equality jurisprudence

Beyond binary discrimination: wading our way through the pool of equality jurisprudence

Reimagining employee representation in the context of collective bargaining under the Labour Relations Act 66 of 1995: The imperative of substantive equality and decent work

Despite what is often said to be progressive constitutional and labour legislation in South Africa, inequality between employees who are affiliated with trade unions (especially registered and representative unions) and those who are not remains. While trade union density (particularly in the private sector) and collective bargaining coverage have declined in South Africa and many countries worldwide, this form of inequality continues to be passed over by the Labour Relations Act 66 of 1995. This article considers this form of inequality, with specific reference to the LRA’s approach to employees’ representation in the context of collective bargaining. If the imperatives of decent work and substantive equality are to be achieved, reform is desperately needed. In support of these arguments and in search of an apposite approach to reform premised on equality, the meaning of substantive equality in South Africa is considered. While dignity is found to be paramount in South African equality jurisprudence and judicial decisions, a more holistic and encompassing approach to substantive equality than dignity alone is needed to respond to the exigencies of employee representation in the context of collective bargaining. Catherine Albertyn and Sandra Fredman’s multidimensional framework for substantive equality is proposed as the most fitting model for this context, and it is applied to bargaining representation under the Labour Relations Act. Broad recommendations for change are then suggested. In conclusion, it is contended that the elements of substantive equality as outlined by Albertyn and Fredman provide a useful framework from which to recast and align the Act’s model of employee bargaining representation with both the pillars of decent work and its transformative role.

Rightism, Reasonableness and Review: Section 377A of the Penal Code and the Question of Equality

This paper examines the article 12 equality jurisprudence with specific reference to the case law and legal discourse over the constitutionality of section 377A of the Penal Code (Cap 224, 2008 Rev Ed). This implicates interpretive method, construing legislative purpose in pre-Independence laws which have been legislatively debated and retained post-Independence, issues related to interpreting constitutional rights, and the judicial role in the face of morally contentious legal questions. The prevailing test of ‘reasonable classification’ and the accompanying presumption of constitutionality has been criticized in two primary ways. First, that it has been misapplied; second, that it constitutes deferential review, in according primary weight to the ‘reasonableness’ of Parliament and political constitutionalism, which detractors urge should be replaced by a more robust test of judicial scrutiny. The article contests the argument that section 377A fails to satisfy the reasonable classification test, particularly because it serves no purpose or an inadequate purpose given its original rationale. It argues that calls to revise the reasonable classification test in favor of a preferred vision of substantive equality constitute an unwelcome invitation to ‘rightism’ and a ‘living tree’ approach to judicial review, which trades in value arguments based on an egalitarian liberal theory of the good. It argues that scoping equality through the reasonable classification test remains appropriate within a communitarian polity, given the constitutional roles of the courts and Parliament, the wide-ranging reach of equality to any differentiating law, constitutional amenability and what might be described as a ‘moral questions’ doctrine, which informs a calibrated approach to judicial review.

The implicit taxonomy of the equality jurisprudence of the UN Human Rights Committee

AbstractThe article analyses the individual communications of the UN Human Rights Committee (HRC) on how the latter conceptualizes equality under the International Covenant on Civil and Political Rights (ICCPR). It finds an implicit taxonomy in the case law that is not reflected in the doctrinal formulae that the HRC applies. The argument proceeds in several steps: First, I argue that the concept of equality in human rights treaties depends heavily on its operationalization by courts and quasi-judicial bodies, like the HRC. Second, I analyse the doctrinal formulae that the HRC has developed in order to specify equality. I argue that the doctrine is rather inconsistent and does not give significant guidance for resolving actual cases. Third, I present the results of a systematic analysis of the case law of the HRC. The latter shows a rather stable pattern which is not reflected in the doctrinal formulae: The best predictor whether the HRC finds a violation of Article 26 ICCPR or another equality norm of the Convention is the existence of a suspect criterion on which the challenged distinction was based. There are only very few cases in which a violation is found in the absence of a suspect criterion. The majority of these cases arguably concern arbitrary state actions. At the same time, the HRC has only rarely held that a state has not violated an equality norm despite the existence of a suspect criterion.

The Implicit Taxonomy of the Equality Jurisprudence of the UN Human Rights Committee

The article analyzes the individual communications of the UN Human Rights Committee on how the latter conceptualizes equality under the ICCPR. It finds an implicit taxonomy in the case law that is not reflected in the doctrinal formulae that the HRC applies. The argument proceeds in several steps: First, I argue that the concept equality in human rights treaties depends heavily on how it is operationalized by courts and quasi-judicial bodies, like the HRC. Second, I analyze the doctrinal formulae that the HRC has developed in order to specify equality. I argue that the case law is rather inconsistent and does not give significant guidance for resolving actual cases. Third, I present the results of a systematic analysis of the case law of the HRC. The latter shows a rather stable pattern which is not reflected in the doctrinal formulae: The best predictor whether the HRC finds a violation of Art. 26 ICCPR or another equality norm of the Convention is the existence of a suspect criterion on which the challenged distinction was based. There are only very few cases in which a violation is found in the absence of a suspect criterion. The majority of these cases arguably concerned arbitrary state actions. At the same time, the HRC has only rarely held that a state has not violated an equality norm despite the existence of a suspect criterion.

Beyond binary discrimination: wading our way through the pool of equality jurisprudence

Beyond binary discrimination: wading our way through the pool of equality jurisprudence

<i>Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders</i> by Janny H. C. Leung (2019)

Shallow Equality and Symbolic Jurisprudence in Multilingual Legal Orders by Janny H. C. Leung (2019), Oxford University Press (Oxford Studies in Language and Law) 305 pp

Venturing Beyond Formalism: The Constitutional Court of South Africa's Equality Jurisprudence

Venturing Beyond Formalism: The Constitutional Court of South Africa's Equality Jurisprudence, 10.1628/rabelsz-2020-0069, Jahrgang 84 (2020) / Heft 4, 0033-7250 (1868-7059), The Rabel Journal of Comparative and International Private Law

ABSTRACT v SUBSTANTIVE-EQUALITY – A CRITICAL RACE THEORY ANALYSIS OF ‘HATE SPEECH’ AS CONSIDERED IN THE SAHRC-REPORT ON UTTERANCES MADE BY JULIUS MALEMA

In the following article I will critically analyse the concept of hate speech as it was considered in the South African Human Rights Commission’s (the ‘Commission’) report on utterances made by Julius Malema (the ‘report’).2 The critique will be delivered by way of Critical Race Theory (CRT) as I aim to illustrate the Commission’s narrow interpretation of racism in light of hate speech. Because the Commission relies on an array of court judgments and equality legislation to form its equality jurisprudence on hate speech, my critique will also set out to show that the Commission's equality jurisprudence is reflective of the Constitution and the courts’ narrow understanding of racism. I aim to argue that a narrow understanding of racism leads to a very abstract equality jurisprudence.

The Emperor of All Actualities: S.377 Jurisprudence in Comparative Context

Navtej Singh Johar v. Union of India revolutionized, contemporized, and revitalized our Equality jurisprudence. In this essay, I argue that Supreme Court’s jurisprudence culminating in Navtej is best understood as one in a long line of cases leading us to an expanded notion of equality (Articles 14 and 15) in the context of a gradual and ongoing judicial acceptance of academic scholarship on a global theory of sexual sovereignty. I address the history behind S. 377 including colonial history, early jurisprudence, attempts at repeal, the High Court decision in Naz Foundation, the reversal in Koushal, and the intermediary steps of NALSA and Puttaswamy leading to redemption in Navtej. I also examine the Indian Supreme Court’s changing attitudes towards comparative constitutionalism with a special emphasis on foreign law, examining the global theory and comparing Navtej with its parallel in Lawrence v. Texas with a focus on Spatial Privacy, Deliberative Autonomy, and Expressive Liberty. I further examine the constitutionality of S. 377 in a neutral manner while considering parallels with Lawrence, noticing how a utopian reading of Lawrence maps perfectly onto the singular approach in Naz and the various approaches in Navtej. I also note the most distinct contributions to our jurisprudence made by the bench in Navtej. In doing so, I examine the changes in our Article 14 and Article 15 jurisprudences, our Right to Privacy jurisprudence emanating from Article 21, and the varying judicial attitudes that lead to such changes. I conclude with a note on the importance of clear rule-making, clarity, consistency, and respect for the separation of powers in judicial analysis.

Challenges and opportunities of gender equality litigation in Nepal

The constitutionalization of an enforceable right to equality opens novel avenues to pursue gender equality claims and presents a new set of challenges for feminist activists. This article analyzes Nepal’s constitutional litigation for alleged breaches of the right to equality with respect to gender from the re-democratization of 1990 until the promulgation of the current constitution in September 2015. It makes one central argument: Nepal’s Supreme Court has played a pivotal role in advancing the rights of Nepali women by crafting — in an incremental way — a nuanced, contextually sensitive, constitutional meaning of gender equality. In this respect, gender equality jurisprudence has been central to the judicial construction of Nepal’s constitutional identity. Nepal’s extensive experience of gender equality litigation offers key comparative lessons — especially for deeply divided societies — on the accommodation of demands for social inclusion and the construction of social identities by constitutional means.

Roger J.R. Levesque: Adolescence, Discrimination, and the Law: Addressing Dramatic Shifts in Equality Jurisprudence

Roger J.R. Levesque: Adolescence, Discrimination, and the Law: Addressing Dramatic Shifts in Equality Jurisprudence

American Equal Protection and Global Convergence

Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by blurring the distinction between facial discrimination and disparate impact, and by collapsing tiered review, the United States’ equal protection doctrine is converging with equality jurisprudence from peer jurisdictions abroad. After describing these changes, we argue that the collective wisdom of foreign jurisdictions should serve as persuasive authority encouraging the United States to continue along its current trajectories of doctrinal reform. We contend that foreign jurisdictions have served as laboratories of doctrinal innovation from which the United States could learn.

The Articulation of an African Philosophy of Equality as Legacy of the South African Constitution

African nations have in common the brutal and humiliating experiences of racism, slavery, colonialism, exploitation, and marginalisation. I refer to this collective trauma as the triple humiliation of racism, slavery and colonialism. These shared experiences to a varying degree have informed those nations’ perspectives on equality and non-discrimination in the quest for the recognition of equal humanity. Unlike the rest of the continent, several countries in Southern Africa (ie, Namibia, South Africa, Zimbabwe) achieved black democratic rule towards the end of the twentieth century. Most notably, in 1994 South Africa realised democratisation and adopted an interim constitution. The final Constitution, promulgated in 1996, enshrines equality provisions that express lessons learned from South Africa’s history of racism, colonialism and apartheid – a past defined by institutionalised inequality.The Constitutional Court and other competent courts since 1994 have developed an impressive and coherent philosophy of equality. Although South African equality jurisprudence has echoes in all regions of Africa and beyond the legal sphere, no effort has been made to bring this radiating influence to its ultimate conclusion, namely that the South African Constitution and constitutional law largely articulates a truly African philosophy of equality. I draw just such a conclusion. In reflecting on the successes and shortcomings of the South African Constitution twenty years after its promulgation, I find that the equality jurisprudence is indisputably an enduring legacy, not only in South Africa, but in Africa as well. Earlier studies have not elevated the equality jurisprudence to an African jurisprudence because they did not connect the ideal of equality to the pan-African philosophy of the muntu or ubuntu. If the connection is made, different people in different parts of the continent will not merely be able to appropriate this philosophy; they will actively build on it as a rich, invaluable, living source of meaning, self-identity and self-worth.

Die beperkings van regstellende gelykheid

Die beperkings van regstellende gelykheid