Recognition without protection: The flaw in India’s anti-discrimination logic

Recent controversies over caste and gender laws reveal a common crisis — Indian law sees identity where it is irrelevant and misses discrimination where it is most real

Recent controversies over amendments to the Transgender Persons (Protection of Rights) Act, the continued exclusion of Dalit Christians from Scheduled Caste (SC) status, and the University Grants Commission’s anti-discrimination regulations appear to concern very different issues. Yet they are driven by a common difficulty: How the law defines discrimination. Across these domains, legal frameworks rely heavily on identifying who qualifies as a member of a protected group. But this focus on identity often produces unease — ranging from fears of exclusion to anxieties about misuse — because identity recognition and discrimination are not always aligned.

Consider first the debate around the Constitution (Scheduled Castes) Order, 1950. The law ties the SC status to specific religious categories, with the result that Dalit Christians and Muslims are excluded. This is not merely a question of affirmative action. It also determines access to legal remedies under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Yet it is widely acknowledged that caste-based discrimination does not disappear upon changes in religious affiliation. Individuals may continue to face the same social stigma and violence, even as the law ceases to recognise them as members of a protected category. Here, discrimination persists, but protection dissipates.

A different anxiety emerges in the context of the UGC’s proposed anti-discrimination regulations. Critics have expressed concern that defining discrimination through specified identity categories may open the door to false or exaggerated complaints. Whether or not such fears are empirically justified, they reflect a deeper discomfort with how identity is operationalised. If the law turns primarily on whether a complainant belongs to a given category, disputes risk being framed less around what happened and more around who the parties are.

Similar concerns surface in debates over proposed amendments to transgender persons law. Here, the issue is the terms on which identity is recognised. Provisions that seek to define or regulate who counts as transgender have generated apprehension among transgender persons themselves, including fears of misclassification or even criminalisation. Once again, identity — this time in the form of state recognition — becomes the site of contestation.

Taken together, these examples reveal a pattern. In some cases, identity categories are too narrow, excluding individuals who experience discrimination. In others, they are perceived as too expansive or too loosely defined, raising concerns about misuse. These may appear to be opposing problems, but they share a common source: An over-reliance on identity as the primary basis for defining discrimination.

This reliance produces a structural mismatch. Identity categories are simplified. They must be legible to the state, verifiable, and relatively stable over time. But discrimination is often messier. It operates through social practices, perceptions, and contexts that do not always map neatly onto formal categories. When the law insists on fitting lived experiences into predefined identities, it risks both excluding genuine cases and generating suspicion about those that are included.

A comparative perspective helps clarify the issue. Under the Civil Rights Act of 1964, anti-discrimination law is organised around protected characteristics such as race, sex, and religion. But the core inquiry is not simply whether a person belongs to a category. Rather, it is whether they have been treated adversely “because of” that characteristic. In Bostock v. Clayton County, for instance, the U.S. Supreme Court held that discrimination based on sexual orientation or gender identity is a form of sex discrimination, because such treatment would not occur “but for” the individual’s sex. The emphasis is on causation.

This does not mean that identity becomes irrelevant. Protected characteristics still matter as markers of historically rooted disadvantage. But they do not operate as rigid gatekeeping devices. The law’s focus shifts from verifying identity to examining the relationship between that identity and the alleged harm.

A similar shift in Indian law would not be straightforward. Questions of proof, administrative feasibility, and institutional capacity would remain. Nor would it eliminate concerns about misuse. But it would help realign anti-discrimination frameworks with their underlying purpose: To address harm where it occurs, rather than only where it fits within predefined categories.

The recurring controversies around caste, gender identity, and institutional regulation suggest that the current approach is under strain. As long as the law remains preoccupied with determining who counts as a member of a protected group, it will fail to respond consistently to the realities of discrimination. A more coherent framework would begin from a different question: Not only who a person is, but whether what happened to them occurred because of it.

Until that shift is made, anti-discrimination law will continue to misrecognise harm — seeing identity where it is irrelevant, and missing discrimination where it is most real.

Sumit Baudh is Professor of Law at Jindal Global University. Views are personal