Tools of justice non-discrimination and the Indian constitution : in honour of K.G. Kannabiran

In the years since independence, the Indian subcontinent has witnessed an alarming rise in violence against marginalized communities, with an increasing number of groups pushed to the margins of the democratic order. Against this background of violence, injustice and the abuse of rights, this book explores the critical, ‘insurgent’ possibilities of constitutionalism as a means of revitalising the concepts of non-discrimination and liberty, and of reimagining democratic citizenship. The book argues that the breaking down of discrimination in constitutional interpretation and the narrowing of the field of liberty in law deepen discriminatory ideologies and practices. Instead, it offers an intersectional approach to jurisprudence as a means of enabling the law to address the problem of discrimination along multiple, intersecting axes. The argument is developed in the context of the various grounds of discrimination mentioned in the constitution ― caste, tribe, religious minorities, women, sexual minorities, and disability. The study draws on a rich body of materials, including official reports, case law and historical records, and uses insights from social theory, anthropology, literary and historical studies and constitutional jurisprudence to offer a new reading of non-discrimination. This book will be useful to those interested in law, sociology, gender studies, politics, constitutionalism, disability studies, human rights, social exclusion, etc. Cover 1 Title 4 Copyright 5 Dedication 6 Contents 8 List of Abbreviations 10 Acknowledgements 12 Introduction: Liberty and Non-discrimination — The Scope of Intersectional Jurisprudence 16 PART I: MAPPING DISABILITY DISCRIMINATION IN INDIA 62 Introduction 64 1. Trends in Disability Rights Jurisprudence 66 2. Recognition of Discrimination Based on Disability 97 3. Interpreting Disability Rights 119 PART II: DISCRIMINATION AND THE STANDARD MEASURES OF DIVERSITY 136 Introduction 138 4. Contextualizing Jurisprudence on Caste 139 5. The Caste System, Justice and the Law 178 6. Untouchability and the Right to Personal Liberty 221 7. Adivasi Homelands and the Question of Liberty 257 8. Plural Societies, Religious Minorities and Discrimination 287 PART III: SEX, GENDER AND THE DENIAL OF FREEDOMS 316 Introduction 318 9. Genealogies of Resistance to Sex Discrimination in India 320 10. Sex Discrimination Jurisprudence in India 351 11. Sexual Assault and the Right to Liberty 385 12. Rethinking the Constitutional Category of Sex 440 Conclusion: Eliminating Hostile Environments — Non-discrimination, Liberty and an Insurgent Constitutionalism 459 Bibliography 484 About the Author 510 Index 511 Introduction: Liberty And Non-discrimination : The Scope Of Intersectional Justice -- Trends In Disability Rights Jurisprudence -- Recognition Of Discrimination Based On Disability -- Interpreting Disability Rights -- Contextualizing Jurisprudence On Caste -- The Caste System, Justice And The Law -- Untouchability And The Right To Personal Liberty -- Adivasi Homelands And The Question Of Liberty -- Plural Societies, Religious Minorities And Discrimination -- Genealogies Of Resistence To Sex Discrimination In India -- Sex Discrimination Jurisprudence In India -- Sexual Assault And The Right To Liberty -- Rethinking The Constitutional Category Of Sex -- Conclusion: Eliminating Hostile Environments : Non-discrimination, Liberty And An Insurgent Constitutionalism. Kalpana Kannabiran. Includes Bibliographical References (p. [467]-494) And Index. This book explores possibilities of using the constituting power of the constitution to posit a dynamic interpretation of non-discrimination in the law. Stressing the links between non-discrimination and the right to liberty, it suggests that interpretation is not the exclusive preserve of courts but may be crafted by people’s movements.