by Viraj Ananth
Conventional understandings of socio-economic disadvantage (SED) view it as a multi-dimensional phenomenon, requiring simultaneous efforts to redistribute economic goods and eliminate status-based inequalities. However, anti-poverty measures in numerous jurisdictions including India, Canada, the United Kingdom, and the United States of America, ignore this dichotomy and focus predominantly on redistribution of material wealth. It is thus unsurprising that while some reports boast of significant declines in global poverty, more modest ones highlight the failures of redistribution to uplift the most vulnerable populations.
Within this context, the recent Indian Equality Bill, 2019 (and its subsequent 2020 version) were welcome developments. In contrast to earlier attempts to draft an all-inclusive anti-discrimination legislation, the Equality Bill, 2019 includes SED as a ‘protected characteristic’. This piece argues in favour of incorporating SED as a stand-alone ‘protected characteristic’ in anti-discrimination legislation because: first, recognition effectuates redistribution by eradicating the social restraints on upliftment; second, inclusion refocuses redistributive efforts on the specific needs of socio-economically disadvantaged groups (‘the Group’); and third, inclusion allows for more comprehensive protection of other protected groups.
Recognition as the means to effectuate redistribution for the group
Global efforts to uplift the Group have largely been concerned with the redistribution of material wealth. This approach ignores the profound status-based discrimination of the Group, which precludes it from effectively using material resources to elevate itself. Anti-discrimination legislations respond to such status-based discrimination through ‘recognition’ — which seeks to deconstruct hierarchical social relations and eradicate prejudices that disadvantage status groups. Accordingly, recognition must supplement redistributive measures by eradicating bias in society, to ensure meaningful upliftment.
Historically, the Group has been negatively stereotyped, both inter-personally as well as structurally, to the extent that bias pervades government policies and decisions. Stigma arises because the merits of the Group are evaluated against dominant standards, with little consideration of its specific conditions. Accordingly, in market economies, low economic value or output is commonly attributed to personal fault and entails direct status implications — resulting in the construction of ‘poorness’ as a status group. The Group is commonly identified with undesirable characteristics like low intellect, laziness and disinterest in education and elicits negative reactions such as disgust and neglect. This results in discrimination in routine interactions including school admission, job recruitment and housing, effectively denying the Group of participatory parity. Stigmatisation also causes psychological harms, including depression, low self-esteem and self-stereotyping.
Bias may be structural — wherein ‘neutral’ institutions and policies, developed within a context of societal inequality, subconsciously reinforce negative stereotypes. For instance, rights-claims by the Group are inherently viewed as suspect, in that individuals must first justify their claim to adjudicatory space. Cognizant of such structural biases, the Group is less likely to approach social institutions. Such structural bias may also be perpetuated through judicial decisions which ignore the cultural dimensions of poverty. For instance, both the Canadian and Indian Supreme Courts have, on occasion, ignored the social restraints on upliftment and characterised the Group as irresponsible authors of their own misfortune.
Laws may also entrench this bias by having a disproportionate impact on the Group. For example, several countries frame social security as a predominantly contributory model, which only rewards those who are ‘productive’. Similarly, zoning laws often force marginalised communities to stay far from their workplaces in urban centres. These laws underpin prejudices that the Group is less deserving of dignity. Such systemic bias against the Group negates established conceptions of justice — such as those of John Rawls and Thomas Nagel — who emphasise that individuals’ pursuit of wealth should not be restrained by arbitrary determinations like social status or biased political decisions.
Therefore, SED undeniably involves identity politics which inhibit the Group’s ability to uplift itself using material resources. The Group is not merely identified as unworthy of respect but is also denied the status of a full citizen in society. Accordingly, redistributive measures must not operate in isolation and should be supplemented by recognition of the status dimensions of SED. This will tackle stigma, affirm individual value and recognise past disadvantage arising from cyclical exclusion. In short, recognition serves as the means for effective redistribution.
Aligning redistribution with the needs of the group
The second compelling argument for including SED as a standalone ground in anti-discrimination legislation is its impact on reconciling biased redistributive measures with the needs of the Group. Redistributive policies commonly result in disparate treatment of socio-economically disadvantaged individuals due to the internalised prejudice of decision-makers.
At the highest level, this is seen through the reliance on ‘absolutist’ measures of poverty, which ignore social factors. By defining individuals in purely economic terms, and ignoring the specific circumstances that may restrict their full participation, policy-makers affirm notions of the Group as responsible for their hardships. Simultaneously, narrowly defined objectives analogous to ‘equality of treatment’ fail to address the asymmetric power structures that restrict equality of outcome or opportunity. This is best evidenced by the failures of the Jawaharlal Nehru National Urban Renewal Mission and the Rajiv Awas Yojana (Scheme) in India with respect to the relocation of slum dwellers. Dwellers were provided alternative housing arrangements far from their sources of income, in areas lacking basic infrastructure such as electricity, water and sewage disposal. No consideration was paid to providing alternate sources of employment or informal credit, which were otherwise found in slum networks. A narrow conception of redistribution inhibited the effectiveness of these programs, by disregarding the specific circumstances that obstruct slum dwellers’ betterment.
Narrow objectives are also commonly reinforced by success parameters that “validate particular world views and prioritise selected areas of knowledge”. For instance, several social security schemes in India characterise families as single units and define income in terms of the male breadwinner. This reaffirms dominant narratives by relegating issues of women poverty to the background. Further, redistributive measures are often coloured by the biases of decision-makers, who may make unfounded assumptions about the worth and needs of the Group. Such biased measures in turn reinforce the prejudices which motivate them. In the slum dwellers example, these biases materialise in the form of poor quality houses, with severe structural defects. This amounts to government-endorsed reinforcement of societal perceptions about slum dwellers as unclean and unworthy of respect.
Thus, policies which appear neutral often have cultural dimensions that serve to the detriment of the Group. Inclusion of the ground will allow the Group to challenge both SED discrimination and government policies that reinforce negative stereotypes. This will allow the Group to bypass constitutional challenges relying on the broader right to equality, which are unlikely to succeed in jurisdictions like India, Canada and South Africa due to the narrow ambits of the right as excluding socio-economic disadvantage. Concurrently, the public sector duty to promote equality will ensure that government policies pay due regard to the increasing socio-economic divide, and eradicate systemic bias through evidence-based decision making.
Better protection for other protected groups
The final argument for including SED as a ground deals with its widespread intersection with other forms of status-based discrimination. It is well established that protected groups are disproportionately represented among the Group. Accordingly, many such groups are defined not by status nor class alone, but by a complex intersection of oppressive forces. This intersectional disadvantage means that the lived experiences and interests of such groups are vastly different from other groups defined solely by the same status. Accordingly, in adjudicating rights-claims by such individuals, courts must not engage with the disadvantages in silos, but must consider their intersectionality — in terms of the cross-cutting nature of status-based and poverty-based discrimination.
Further, due to this disproportionate representation, numerous governmental and private policies which purportedly discriminate on socio-economic grounds — such as voter ID laws and credit history screening for job recruitment — inordinately impact other protected groups like women and ethnic minorities. Traditionally, such specially disadvantaged groups would be required to challenge these policies as discriminatory against their status. However, these policies are commonly defended as discriminating on the basis of, not status, but socio-economic grounds (which is permissible). Inclusion of SED as a standalone ground will push courts to better appreciate the linkages between forms of discrimination and deliver more comprehensive responses.
Framing rights-claims along status lines may also serve to alienate other socio-economically disadvantaged status groups from the benefits, and foster unhealthy competition for scarce resources. Including SED as a ground will allow claims along both status and SED lines. This will allow the Group to recognise shared experiences, mobilise along socio-economic lines and pose stronger challenges to discriminatory policies. Finally, inclusion will reduce socio-economic disparities within protected groups. Recruitment and housing policies, for instance, often favour socio-economically advantaged members of a protected group (rich women) to the detriment of their counter-parts (poor women). A standalone ground of SED will better protect against such outcomes.
In societies where individual worth is defined by both market and cultural values, it is superfluous to address SED through merely the redistribution of economic goods. SED is inextricably linked to status, because social barriers restrict the Group’s ability to use material resources to uplift itself. Once this is established, it is clear that anti-discrimination statutes — which eliminate prejudice and affirm individual worth — must supplement redistributive efforts. Further, by granting justiciable rights and imposing an equality duty on the government, anti-discrimination legislation will reconcile redistribution measures with the specific needs of the Group. Finally, in allowing claims to be framed as both status and SED-based, a standalone SED ground will bring intersectional considerations to the forefront and grant fuller protection to all protected groups. This will also stimulate mobilisation along socio-economic lines and reduce economic disparities within protected groups.
ABOUT THE AUTHOR
Viraj Ananth is a fourth-year B.A. LL.B. (Hons.) student at the National Law School of India University, Bangalore.