Poverty as a Ground in South Africa and India
“Bill of Rights, Durban South Africa” is licensed under Creative Commons BY 2.0.
Editor’s note: this blog post is the first in a series featuring articles that will be published in the upcoming Constitutional Court Review XIV.
The article is a work of slow comparisons. It reads two cases that were decided by the apex courts in India and South Africa in 2022 in conversation with each other – Janhit Abhiyan and Social Justice Coalition.
Both these cases deal with poverty as a ground under equality law. This is fascinating for any comparative constitutional and equality lawyer, because both these nations faced with extreme inequality and poverty were deciding, around the same time, how poverty is to be addressed within equality law.
“Even when poverty is recognised as a ground within equality law, several tensions or barriers to achieving substantive equality for the impoverished may arise.”
These cases form an important deliberative resource for both these countries as they consider similar questions. These jurisdictions can learn from each other – both from missteps and things well done – in the spirit of a horizontal rather than hierarchical conversation. At the same time, these cases form an important deliberative resource for other nations thinking about whether and how to address poverty through equality law. In the spirit of ‘reversing the gaze’, there is much that the Global North can learn from South Africa and India, particularly as they pioneer the recognition of poverty as a separate ground within equality law.
A reading of these cases reveals that the recognition of poverty as a ground within equality law is only a first step. Even when poverty is recognised as a ground within equality law, several tensions or barriers to achieving substantive equality for the impoverished may arise.
Janhit Abhiyan and Social Justice Coalition shed light on some of these barriers: (1) the recognition of poverty as a ground may be a form of constitutional subterfuge or misuse of human rights and equality law; (2) those lying at the intersection of different grounds, particularly race/caste, gender and poverty, and therefore multiply disadvantaged, may be excluded because of a formal and non-intersectional conception of equality; (3) there may be long delays in obtaining effective remedies when redistribution of resources is required to ensure substantive equality for the impoverished; and (4) principles around access may pose barriers for claims of the impoverished to reach courts.
Whereas the article sheds light on all four tensions or barriers, in this blog post I focus on the first and last.
Political context: misappropriation of equality law in India
In India, poverty was recognised as a ground for affirmative action through the 103rd amendment to the Indian Constitution. This amendment received serious political pushback, largely from lower caste communities.
Through the amendment, Economically Weaker Sections (EWS) were recognised as beneficiaries for reservations in higher education and public employment. A fixed proportion of seats (quotas) can be reserved in universities and in job recruitment by the state for those who meet the criteria of EWS. However, the amendment is explicit, in its very text, that members of lower caste communities (Scheduled Castes, Scheduled Tribes and Other Backward Classes) cannot benefit from EWS reservations.
Caste, a system of graded inequality, is a significant source of oppression and domination in India. In the fight against caste-based oppression, reservations have served as an important tool for lower-caste communities to access higher education and public employment. Lower caste-communities have therefore opposed EWS reservations because they are unable to benefit from these reservations, and these reservations undermine their struggle for equality.
Caste was the first ground on which reservations were recognised in India, and lower caste communities have always been able to access reservations. But lower caste communities are excluded from EWS reservations, even when lower caste communities are overwhelmingly impoverished and therefore able to otherwise meet the criteria of being ‘Economically Weaker’.
It has been argued that the EWS reservations were introduced to appease the upper castes, and not to redress poverty. The amendment is therefore characterised as a misappropriation of equality law to poverty-wash upper-caste appeasement. This context is key to understanding the political opposition to EWS reservations.
The 103rd amendment was eventually challenged before the Indian Supreme Court in Janhit Abhiyan and upheld by the majority of judges deciding the case. In the article, I critique the majority opinion for failing to uphold a substantive and intersectional vision of equality under the Indian Constitution. The legal arguments must be understood against this political backdrop.
Importance of access to courts and timely remedies in South Africa
In South Africa, the Equality Court recognised in December 2018 that poverty fulfils all the requirements contained within the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 for unlisted grounds for discrimination. It held that impoverished, working class, Black residents of Khayelitsha in Cape Town faced discrimination on grounds of race and poverty in terms of allocation of policing resources.
This is a remarkable move by a court in recognising poverty, and its intersection with race, as a ground for discrimination. But the Equality Court did not grant a remedy (beyond a declaratory order), and petitioners were compelled to go before the South African Constitutional Court to seek effective remedies.
In Social Justice Coalition, the Constitutional Court found that it did not have jurisdiction to decide the matter and once again passed the buck to the Equality Court. In the article, I critique the Constitutional Court’s interpretation of its rules of access, for failing to consider the requirements of substantive equality in the interpretative exercise.
On 3 April 2023 the Equality Court passed an order requiring respondents to meet with the applicants and ‘other interested parties’ to engage with regards to the plan for re-allocation of policing resources. Despite considerable efforts by the applicants, this engagement is yet to be completed. As things stand, the allocation of policing resources in Cape Town has been found to discriminate against poor, Black communities residing in Khayelitsha, but this discriminatory state of affairs continues.
The fine-grained story of Social Justice Coalition draws attention to the interlinkages between procedural (such as access to courts and jurisdictional concerns), substantive, and remedial matters in the context of poverty and equality law.
Conclusion
Reading these cases together helps indicate that recognising poverty as a ground provides an important resource for impoverished peoples to challenge their inequality, but only if we are attendant to these interconnected issues. Ultimately, the political context; the conception of equality (as substantive and intersectional); appropriate rules of access to courts; and effective, timely, redistributive remedies are key to ensuring substantive equality for the impoverished.
