In the Aftermath: Poverty as a Ground in South Africa and India

This article engages in critical and comparative Global South research to uncover insights into the long-standing global debate around poverty as a ground under equality law. In India, poverty came to be recognised as a ground for the purposes of affirmative action through the 103rd amendment to the Indian Constitution. In South Africa, poverty was recognised as a ground for discrimination through the interpretation of the Equality Act by the Equality Court. A close look at the Constitutional Court’s decision in Social Justice Coalition (2022) in conversation with the Indian Supreme Court’s decision in Janhit Abhiyan (2022) reveals important insights into the aftermath of the recognition of poverty as a ground under equality law, including (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, and therefore most 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 before courts. Overall, the article encourages us to be attentive to the interconnected political, procedural, substantive, and remedial concerns that arise in the context of poverty and equality law.