This article is written by Tarannum Vashisht, from Rajiv Gandhi National University Of Law, Punjab. This article is aimed at adjudging the requirement of an Anti-Discrimination Law in India.
Discrimination is one of the most talked-about and heated topics from times immemorial. Be it the field of sports, workplace or any other institution of the society, discrimination is deeply ingrained in almost all these areas. This problem can certainly be termed grave in a country like India, where discrimination is yet to leave the structure of the society after over 70 years of independence. One of the proposed solution to this deeply engrained problem is the adoption of a uniform Anti Discrimination Law in India. This article covers the need to adopt such a law in detail.
Major areas of discrimination In India
Although discrimination is prevalent throughout the country in all possible manifestations, still here I would like to summarize some major areas of discrimination present in the country.
Discrimination based on race haunts almost every aspect of the society, be it education, film industry, familial structures or employment opportunities. This has become increasingly unintentional and indirect. This manifestation of discrimination was explained in the case of Griggs vs. Duke Power Co, which was a U.S. Supreme Court case. In this case, a company was accused of racially discriminating against the African- American population, through a policy which was ostensibly neutral.
The Supreme Court Of the United States of America ruled that this act of the company was against the U.S. Civil Rights Act of 1964. A superfluous written test, which was racially neutral only on the face of it, was taken of all the aspirants. The ostensible purpose of the test was to choose the best out of the best, however, it was used as a tool for effectively discriminating against the African Americans to deny them the jobs. Therefore, this test was declared, by the court, to be discriminating in practice. After this, racial discrimination in private workspaces in any form became explicitly illegal.
Discrimination by private parties
The constitution of India explicitly provides the right to equality as a fundamental right to every citizen of the country. It also provides as a fundamental right to move the high courts or the Supreme Court of India if the state discriminates against her on the basis of caste, colour, creed, religion or sex.
Let’s take for example the case of Madhu vs. Northern Railway, in this case, the Supreme Court of India applied the reasoning followed in Griggs vs. Duke Power Co. In this case, Indian Railways was alleged to discriminate against a woman and her daughter. This woman was the wife of an ex-employee of Indian Railways, the latter being his daughter, they were denied the use of his health care, which under the law they had a right to use.
Indian Railways pointed out before the court that their employee had disowned his wife and daughter, and had struck their names off his health card. Hence, they were not allowed to use such services which under normal circumstances they would be entitled to use. The apex court, siding with the mother and daughter, ruled that this act of the Indian railways may seem ostensibly neutral, but it was heavily discriminatory, especially with respect to women and children.
Till now, we have talked about only the state, now let’s come to the non-state actors, who heavily influence the lives of citizens, like housing companies, schools, employment opportunities etc. Though the constitution of India has provided Article 15, to encompass this area, which stipulates that no person shall be denied entry into shops, hotels etc only on the basis of their caste.
However, as has already happened on many occasions, this right may come in conflict with the right of citizens to associate with people of their choice. Therefore, every case of discrimination has the opposite party claiming that it has all the liberty to do the said act according to his conscience.
One case enumerating this aspect is that of Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others. In this 2005 case, the Supreme Court of India ruled in favour of the Parsi law which excluded people of any other community to buy land. Reasoning it, the apex court said that Parsis have the fundamental right to choose with whom they would want to associate. I firmly believe that there is a need to have judicial precedents overruling such judgements of the Supreme Court.
Right against discrimination at the workplace
In India, there is no national legislation controlling the behaviour of employers in the workplace. However, there are a number of legislation which cover various aspects of employees rights, protecting especially some vulnerable ones like women, disabled people etc.
The employer is also obliged to protect its employees against any kind of harassment at the workplace. All employers have the responsibility to constitute a committee to resolve issues specifically related to sexual harassment at the workplace. Following are the compulsory members of such committees-
- Presiding Officer- This post is to be occupied by a senior female employee.
- Two Other Members form the workplace- These have to preferably be those employees who have had some experience in social work and are devoted to the cause of women, having some legal knowledge.
- External member- There has to be one external member from a non-governmental organisation. Such an organisation is supposed to be committed to the cause of women. This member can also be an external lawyer, motivated to work for the cause of women.
This committee shall be called the Internal Complaints Committee (ICC). The term of the members of this committee shall under no circumstances exceed 3 years. Also, at least half of the members of every ICC are supposed to be women.
The employers are also to provide accommodation and other essential infrastructural services to their employees. Standards have to be followed for adequate providence of public buildings, bus body code, website standards etc. All these have to be in consonance with the government of India guidelines. Also, the employers have a duty to provide her employees with a safe work environment in all possible ways.
Why are the existing laws not enough?
The existing laws, cover only the major areas of discrimination, like untouchability, sexual harassment at workplace etc., that too, only against the state. The questions of many vulnerable groups still remain unanswered. For example, Why are Muslims or homosexuals not taken as workers by the private landowners? Why does a discriminatory mindset exist with regard to someone’s marital status, disability, sexuality, or food habits?
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. Therefore we need a comprehensive law with a wide ambit covering all kinds of discrimination. One such bill is pending before the parliament and is yet to be made into a law.
Anti-discrimination Bill and Equality Bill, 2016: Brief Overview
Presently, there is no comprehensive anti-discrimination legislation in India. There are some scattered laws which protect the citizens, but those are only available against the state and not private organisations or individuals. The constitution of India also does not have any specific provision and remains silent on this issue.
To bridge this gap, MP Shashi Tharoor had moved a bill in the parliament, titled Anti- Discrimination Bill and Equality Bill, 2016. This bill gives a wide ambit to the concept of discrimination, extending its application to the private sector as well. Hence protecting the ones, who were earlier left defenceless.
This bill covers all varieties of people that one can think of, like all consumers, service providers, shopkeepers etc. Be it the formal sector, informal sector, organised sector or the unorganized sector.
One area that this bill covers, which is of specific importance, is that of Khap panchayats and other such entities, evoking violence based on communal lines. This bill seeks to take over Khap panchayats by dismantling every kind of segregation and discrimination based on that.
One major example of how this would be done is when such entities file cases of kidnapping against people of different communities who marry each other against their family’s will. When this bill is enacted, filing of such complaints would be termed an act of segregation and hence punishable under law.
No law comes without duties. This bill when evolves into law would give birth to positive duties of every organisation to make such policies, which make diversification and anti-discrimination mandatory. This law would also promote framing of such policies which promote scholarships to encourage such individuals to come on the same footing, who have, from times immemorial been discriminated against. Hence, promoting not only equality but equity as well.
One of the best examples of such policies is, a housing society with more than 50 housing units and a private company with more than 100 employees is compulsorily obliged to furnish a diversity report to a state commission managing these affairs.
This bill also provides compensation to the people who have been discriminated against, this is a one of a kind initiative. The damages are to be ascertained in a unique way. This amount is to be half of an MP’s salary or one lakh rupees, whichever is more. Another provision is made for aggravated discrimination. This would be equal to fifteen lakh rupees, or the annual salary of the president of India, whichever is higher.
This was a glimpse into the element of compensation that this bill provides, now let’s move to the protective orders. There are also provisions for the protection of individuals from the continued discriminatory practices of organisations or private individuals. Any metropolitan magistrate or Judicial magistrate first class can pass such an order. If such an order is violated, imprisonment for a period of one year, fine up to the amount of the salary of the president of India or both can be imposed by the magistrate.
This was the enumeration of some important provisions of this brilliant bill. If this bill is not passed as a law, it can, without doubt, be termed as a humongous loss for both the society and the polity of India.
The Equality Bill, 2019
This is a comprehensive piece of writing, yet to become legislation. It has been characterised into six components and guarantees protection for people with any caste, race, ethnicity, descent, sex, sexual orientation, gender identity, tribe, nationality, disability, marital status, pregnancy, health (including HIV/AIDS status), occupation, political opinion and belief, linguistic identity, place of birth, age, migration, religion, refugee status, socio-economic status, occupation or food preference.
This bill attempts to prevent all manifestations of discrimination like intersectional discrimination, structural discrimination, hate speech, boycott, any kind of harassment, lynching, victimisation or any other kind of direct or indirect discrimination. This bill also seeks to establish specially designed equality courts for resolution of all kinds of disputes emanating from any discriminatory practice. This bill also obligates the state and private individuals to follow positive duties, so that a non- discriminatory environment can be fostered.
It is evident that the vision that our constitution makers had for the society that habitats India has not yet been fulfilled. Discrimination corrupts almost every institution of India. This makes this fact unambiguous that the existing provisions to prevent discrimination are evidently insufficient to prevent the vivid manifestations of discrimination prevailing in the society. Therefore, the enactment of comprehensive legislation becomes of utmost importance. Hence, for the benefit of both the society and the polity of this country, the Anti-discrimination and Equality Bill should be thoroughly scrutinized and passed as a law on an urgent basis.
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