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This article is written by Shikha Pokhriyal, from the School of Law, Delhi Metropolitan Education, GGSIPU. This article talks about the practice of discrimination and its various forms.

Introduction

Discrimination is a word that we have been studying for many years. Discrimination means unjust or preferential treatment on the grounds of caste class gender religion country etc. The rights and interests of a person are violated due to discrimination. It occurs when a person is deprived of their common rights. Discrimination is a very heartbreaking practice that promotes inequality. In ancient times, due to discrimination lower caste people were not allowed to use the services made for the public, the children belonging to the lower caste were not allowed to go to school. The women in this world have been victims of discrimination for ages and still suffer this at the home, workplace, or any other place. This article shall deal with the topic of discrimination and the types of discrimination witnessed all over the world.   

Discrimination

Discrimination is treating a person or group of people differently and not in a good way. It means to consider a group of communities as inferior. Discrimination always occurs with different minorities (gender, class, etc.). So many forms of discrimination exist in this world. The people belonging to the different communities are treated so harshly and in a very bad way. Some so-called majority social groups decide opportunities for them. But who gave them the right? Just because they are large in number does it give them the right to treat different groups in an inferior way. 

Constitutional provisions against discrimination in India 

The Indian Constitution forbids the practice of discrimination through its various fundamental rights:

1. Article 14 of the Indian Constitution states that every individual shall not be denied equality before the law regardless of belonging to any community. 

2. Article 15 of the Indian Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. This section states that no individual shall be prevented from using any public place, like shops, restaurants, etc. It further states that no one should be restricted to use the public services created for the welfare of all the society like wells, tanks, etc. The state governments are allowed to make special law provisions in the favour of women and children. 

3. Article 16 of the Indian Constitution promotes giving equal opportunities to all the people in the area of public employment. “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” 

  • The state governments are given the liberty to make special provisions in the favour of women and children. Also, the state governments will be allowed to create reservations in the government jobs and the education institution for the people belonging to a minority. This is because the people belonging to backward communities including Scheduled Castes, Scheduled Tribes, and Other Backward Classes are not able to present themselves because of discrimination even though the talent is the same. But opportunities are taken away from them based on the reason that they belong to the minority community.

4. Article 17 of the Indian Constitution forbids the practice of untouchability. If someone continues to practice untouchability that individual shall be punished under the law. The word untouchable is not defined anywhere in the law, but it means that the physical touch of the people belonging to minority communities would violate or harm the beliefs of the people belonging to higher classes. The people who are considered untouchables are not allowed to go to the same temple. They are discriminated against as they are not allowed to follow the same practices the upper-caste follows. This is the form of discrimination that takes away all the fundamental rights of a person and deprives them of their lives. 

5. Article 21 of the Constitution states that no person shall be deprived of their life and they will have the personal liberty to live their life on their terms. When someone faces discrimination the first right that is taken away from the people is this right. Discrimination forces a person or the community to live their life according to the people belonging to the majority groups. 

6. Article 46 of the Constitution helps to promote the education and economic interest of the people belonging to the Scheduled Caste, Scheduled Tribes, and the Other Backward Classes. To protect them from social injustice.    

Direct and indirect discrimination

Direct discrimination means that a person or group of people are treated in an unfair way or a prejudiced way. It is the system of restricting an individual or group of individuals from using the services available to society or not providing them enough opportunities based on the fact that they belong to different religions, caste, classes, or gender. It occurs when the opportunities are available for everyone in the society but a person belonging to a different caste or gender is neglected even though they are capable enough of that opportunity and have qualified all the criteria required.

For instance, in the Lebian, Gay, Bisexual, Transgender, Queer (LGBTQ) community, the people belonging to this group often become the victim of discrimination in the majority of things. These people are neglected in society just because they are of a different gender. The people belonging to these communities find it difficult to find work and even if they do they are not considered for the higher positions. Simply walking on the street is also not easy for them, the cis-gender people often taunt and mock them for acting differently or dressing up differently. The trauma of being treated differently is very difficult to cope up with and makes a person loses the will to live in a society.

Indirect discrimination stipulates that when there are some rules and regulations that apply to every person living in the society but it creates some problems and disadvantages for specific individuals or groups of individuals based on the fact they are different in a certain way. Indirect discrimination is unlawful if it comes under the criteria where the person is treated unfairly on the attributes like caste, sex, gender, race, nationalism, etc. 

In the workplace, there should be equality. To promote equality the management of the company should make required policies and regulations so that no form of discrimination takes place. However, there are some universal policies of the company that are supposed to be applied to every individual but the consequences of this kind of policy are sometimes unfair to an individual or group of individuals because they have some different characteristics.

By formulating the universal policies though the person means well and no grudges against any community but that policy might accidentally hurt some person’s emotions or make them feel that they are sidelined because they belong to a certain gender, caste, religion, or any other country.

“The concept of ‘indirect’ discrimination refers to an apparently ‘neutral’ law, practice or criterion, which has been applied equally to everyone but the result of which favours one group over another group”.

Cases of indirect discrimination

  1. In a company, where promotion is to be held for the position of general manager and for this position one male and a female employee were considered as their qualities fulfil the requirements. The female employee had more experience in the field. The male employee got the promotion and the head of the company when asked for the reason for the disqualification of the female employee said that we needed a person who can work full time and can travel whenever the company requires. This case is nothing but a typical example of indirect discrimination that females face in their careers because they are considered less than men and also sometimes the company assumes her family won’t let her do this much work.
  2. One can also indirectly discriminate against a person based on their age. For instance, a company is hiring associates in a law firm and the requirement to be recruited is a work experience minimum of 10 years. By making the age factor a crucial aspect the company is discriminating on the age as there may be more young people out there who are skilled and do have some new ideas of working. Not giving them an opportunity just because they are getting started is wrong.  
  3. One can also be discriminated against indirectly based on their race. If someone moves to the United Kingdom in search of a job and when they find one the criteria to be recruited is to have a graduation degree from a United Kingdom educational institution, even though that person is qualified to work there and has graduated fans even do have some job experience still that person does not get a job.
  4. One can also be indirectly discriminated against based on religion. A, a Christian man is working in a watch showroom, their manager tells all the employees there that now onwards no one will get holiday for at least a month. A person who is obligated to at least go to church on Sundays can not go because of this new company policy. A tries to talk to his manager about it but the manager refuses it and says it would be unfair to give him even the half-day.

Equality Act, 2010

The United Kingdom enacted the Equality Act, 2010, to prohibit all kinds of discrimination whether be direct or indirect. This provision of the law was established to control discrimination in society and the workplace. The basic framework of this Act was to protect the people from discrimination that happens in the workplace, educational institutions, harassment, and victimization in the public. The act covers the various topics of discrimination like:

  • Protection to breastfeeding mothers.
  • Protects the disabled, ordered to make adjustments for the people who are disabled.
  • Protects in the workplace. Like normalizing to pay all the genders equally and also introduced new provisions regarding the discrimination based on sex, religion, pregnancy, and maternity.
  • It also forbade discrimination based on age and ban to consider age while recruiting in the service and public functions.

Indirect discrimination in India

The term indirect discrimination is not popularised in Indian society. So no legal provisions are currently there to monitor indirect discrimination in India. But Supreme Court in one of its judgments introduced ‘indirect discrimination in the Indian Jurisprudence. The bench was headed by Justice D Y Chandrachud and while introducing this concept, the Court stated the main difference between direct discrimination and indirect discrimination is that direct discrimination cannot be justified as it is done intentionally and indirect discrimination can be justified as it does not make anyone feel inferior. Justice Chandrachud said that indirect discrimination happens due to not considering the underlying effects of the provision or practice is caused due to facially neutral criteria.

This concept of indirect discrimination was introduced in the Supreme Court when 86 short service commission officers who were women were demanding equality in the application of standards for grant of permanent commission. The Court in the matter said that the standards which were enacted at first appeared to be neutral but in deep they were patriarchal and reflected the mindset of discrimination against women. The Supreme Court in the hearing said that they need to introduce new laws that would cover the concept of indirect discrimination.

Conclusion

Discrimination is the activity that makes a person feel ignored and sidelined. Commenting upon people’s sexuality, age, gender, caste or any other thing makes that person feel less and ashamed. Indirect discrimination is not done intentionally but the aftermaths of some provisions affect some people or groups of people. There is a need to formulate policies that do not discriminate against a person at all and do not hurt the sentiments. There is a need for a law that will cover all sorts of discrimination and would help the people who become victims of the discrimination.  

References


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