The context: There is no comprehensive anti-discrimination law covering the entire country. The constitutional provisions generally view discrimination from a state-citizen perspective. But this approach does not take into account the discriminatory actions of private individuals. Also, the existing legal framework falls short of ensuring justice to the survivors of discrimination as seen during the Covid 19 pandemic. In mid-2021, many state governments brought draft anti-discriminatory bills to deal with the problems of discrimination faced by people. In this context, the write-up analyses the need for pan-Indian anti-discriminatory legislation.
WHAT IS AN ANTI-DISCRIMINATION LAW?
Discrimination means unfair treatment due to a person’s race, caste, religion, gender, or other identity markers. Thus, an anti-discrimination law or non-discrimination law or equality law (here and after “law”) means a legislation aimed at preventing discrimination against people based on their personal characteristics. The pith and substance of these laws are twofold. One is the vesting of the right against discrimination on the basis of protected characteristics such as race, religion, ethnicity, sexual orientation, and gender, among others. The second is the imposition of civil liabilities on persons for engaging in unlawful discrimination. Such laws concretises or give substance to the notion of equality mentioned in the Constitution without which the rights given therein will remain a myth. Thus, the philosophy of the law is to bring an egalitarian society in its widest sense and purpose of the term by establishing a comprehensive anti-discriminatory legal-institutional ecosystem.
WHAT IS THE NEED FOR AN ANTI-DISCRIMINATION LAW IN INDIA?
Structural discrimination: More than 70 years after Independence, our society remains rife with structural discrimination. These prejudices pervade every aspect of life, from access to basic goods, education, and employment, etc. Cases of discrimination continue to be witnessed. They are frequently directed against Dalits, Muslims, Women, Persons of different sexual orientations, ‘Hijras’, persons with disabilities, persons from the North-Eastern States, unmarried couples, and non-vegetarians, among others. Mob lynching, hate speech, communal polarisation, etc are the results of such discriminatory practices. Today there are multiple sources of discrimination that go beyond what is provided in the Constitution.
Discrimination by Private Parties: The Right to Equality under the Constitution prevents the state from discriminating against persons on various grounds. But it is silent on the discrimination practiced by private individuals and organization although Art 15(2) and 17 deal with this aspect but its enforceability and effectiveness has been poor (Art 15 (2) prohibits discrimination on religion, race, caste, etc from accessing shops, hotels, places of public entertainment, wells, tanks, etc.) There is no legal recourse in India if citizens have been discriminated against by private entities such as service providers, landlords, housing societies, employers, educational institutions, retailers, etc. The law would give birth to positive duties of every organisation to make such policies, which make diversification and anti-discrimination mandatory.
Global Examples: India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation. In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law that prohibits unfair discrimination not only by the government but also by private organisations and individuals.
Growing public demand: Beginning from the Sachar committee recommendation for such a law, there have been a few efforts to this end in recent times. Shashi Tharoor introduced a private member’s bill in 2017, while the Centre for Law & Policy Research drafted and released an Equality Bill last year. These attempts recognize that our civil liberties are just as capable of being threatened by acts of private individuals as they are by the state.
Existing laws not enough: The existing laws cover only the major areas of discrimination, like untouchability, sexual harassment at the workplace, etc.(Read Ahead) The questions of many vulnerable groups remain unanswered. For example, why are some minorities or homosexuals not taken as workers by the private landowners? Why does a discriminatory mindset exist regarding someone’s marital status, disability, sexuality, or food habits?
Empirical Evidence: We encounter so many situations every day where someone is refused accommodation because he is a Dalit, or a Muslim, or a Homosexual. NGOs, clubs, schools, colleges, hospitals, no such institution is completely free from this evil. Even sports are not immune from this problem as a famous Indian cricketer pointed out how players from the south faced racial discrimination while playing in the north. During the Covid 19, Sex workers and healthcare workers have been facing stigma and harassment for being carriers of the virus. In Pune, 22 members of staff of a multi-specialty hospital were forced to vacate their accommodation as they had treated a Covid-19-positive and were thought to be infected. Nurses working at Victoria Hospital in Bengaluru were evicted from their paying guest accommodations based on the perception that they are infected with the coronavirus.
Human rights and SDGs: The UN Human Rights Council’s Universal Periodic Review of India in 2017 has commended that India needs to strengthen its national framework to reduce all kinds of discrimination and to promote and protect the human rights of all its citizens in an inclusive manner, to fulfill the Sustainable Development Goal 10 of reducing inequality and discrimination.
WHAT HAS BEEN THE RESPONSE OF THE GOVERNMENT OF INDIA?
The Sachar Committee Report, 2006 had recommended taking legislative measures to counter discrimination, especially by setting up an Equal Opportunity Commission. The Central Government subsequently set up the Expert Group on Equal Opportunity Commission under the chairmanship of Prof. N. R Madhava Menon to look into the question of framing legislation to implement the recommendations of the Sachar Committee. The Group drafted The Equal Opportunity Commission Bill, 2008 to meet this aim. While the draft Bill was criticized by scholars for having vague and ineffective provisions, it nevertheless provided a boost to the campaign for an equality law in India. The United Progressive Alliance Government did not expedite the legislative process in enacting an anti-discrimination law. The Union Cabinet belatedly approved setting up an Equal Opportunity Commission in February 2014. However, a few weeks later with the change in Government post the Lok Sabha elections, the Bill was more or less ignored. The Private Member Bill of Dr. Tharoor also lapsed after the dissolution of the 16th Lok Sabha as the treasury benches displayed no interest in taking the bill forward.
INTERNATIONAL MODEL: THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age. The U.S. Equal Employment Opportunity Commission (EEOC) is a bipartisan Commission comprised of five presidentially appointed members. It enforces the “Notification and Federal Employee Antidiscrimination and Retaliation Act (No FEAR) 2002” which aims to ensure that all Federal employees feel free to come forward with allegations of discrimination, wrongdoing, or misconduct, by making sure that Federal employees are aware of their rights. This law aims to increase the accountability of federal agencies for acts of discrimination and reprisal. This protection covers the full spectrum of employment decisions, including recruitment, selections, terminations, and other decisions concerning terms and conditions of employment. The EEOC also enforces the Civil Rights Act 1964, Equal Pay Act, The Age Discrimination in Employment Act of 1967, among others.
Leadership by States: State legislations are contributing to the discourse on anti-discrimination law. In 2021, seven states like Kerala, Tamil Nadu, Rajasthan, West Bengal, etc have come out with draft bills on this subject. The Centre can take a leaf out of this and make a comprehensive law and establish an Equal Opportunity Commission. This is vital as the states cannot legislate in subjects in Union List.
Ensuring Effective Implementation of existing laws: There are few laws and IPC provisions dealing with anti-discrimination in India. For instance, Equal Remuneration Act, 1976 – Guarantees equal pay for equal work to men and women. Indian Penal Code, 1860 (Section 153 A)- Criminalises the use of language that promotes discrimination or violence against people on the basis of race, caste, sex, place of birth, religion, gender identity, sexual orientation, or any other category. Mental Healthcare Act, 2017 – Prohibits the denial or refusal to access mental healthcare facilities or services for people on the basis of race, caste, religion, place of birth, sex, gender identity, sexual orientation, disability, or any other category.
Conducting a Caste Census: A comprehensive socio-economic caste census needs to be conducted as it would provide an empirical basis for lawmaking as there exists a strong link between caste, discrimination, and privilege in Indian society.
Fundamental Changes in the socialization process: Discrimination is as much a social problem as it is legal. A law may not solve the discrimination unless the social mores changes which must discard discrimination.
Constitutional morality and Judicial intervention: The judiciary has employed the concept of constitutional morality to end many discriminatory practices in Indian society including those based on sex, gender, etc. The apex court needs to nudge or persuade the representative institutions through “judicial dialogue” to facilitate the process of ending discrimination either overt or covert.
CONCLUSION: Equality of opportunity given in the Constitution remains a myth despite 70 years of independence. This is the context of demand for an anti-discrimination law. There are committee and commission reports as also growing public demands for the same. The Parliament and the executive need to seriously consider enacting a comprehensive anti-discrimination law to further substantive equality and also to give concrete shape to its international commitments.
- For substantial equality in India, constitutional equality must be complemented by a comprehensive anti-discrimination law. Examine.
- Anti-discrimination law is not a panacea for the problems of inequality and social prejudice that are deeply rooted in Indian society. Nevertheless, it is a necessary step — an idea whose time has come. Critically Analyse.
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KERALA ANTI-DISCRIMINATION AND EQUALITY BILL, 2021
The Bill prohibits employers, landlords, traders, service providers, private persons performing public functions, and public authorities, from discriminating on grounds of caste, race, ethnicity, descent, sex, gender identity, gender expression, pregnancy, sexual orientation, religious identity, tribe, disability, linguistic identity, HIV-status, nationality, marital status, dietary preference, skin tone, physical appearance, place of residence, place of birth, age or analogous characteristics which are beyond the control of an individual or those that constitute a fundamental choice. At the same time, the Bill balances the anti-discrimination mandate with other rights guaranteed by the Constitution. The anti-discrimination mandate can be restricted in pursuance of a legitimate objective: for instance, a drama company putting up a production of the Ramayana can insist on only male applicants for the role of Ram. That would not be discrimination in the terms covered by the law.
The Bill also introduces affirmative-action provisions whereby public authorities are obliged to progressively realise the diversification of their workforces by recruiting members of disadvantaged sections excluded from society, such as transgender persons or persons with disabilities. Given the backlogs in our judicial system, the Bill establishes a ‘Kerala Equality Commission’ to adjudicate complaints and to provide policy recommendations to the State government. Given that the proliferation of post-retirement public offices for judges does not augur well for judicial independence, the proposed commission does not follow the tried and tested model of former judges presiding over statutory bodies. Rather, appointments to the Commission are left to the political process, with substantial weightage given to the largest parties in the State, both in the Treasury and Opposition benches, to ensure bipartisan buy-in to the process.
The Bill has been forwarded both to the Law Minister of Kerala and the Leader of the Opposition with the suggestion that it should be subjected to a pre-legislative consultation process, so that democratic participation in enacting this historic law is encouraged If this Bill is enacted, it will be the largest expansion of civil rights in the State since the commencement of the Constitution, and it can be a model for other states to follow.
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