CONTEXT

• Several forms of discrimination against individuals based on religion, caste, ethnicity, marital status, gender, sexual orientation and even eating preferences have become too common in our society.

To address the issue, an anti-discrimination Bill have been drafted in Kerala and is expected to be introduced in the State Legislative Assembly.

Prohibition Clause:

• 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.

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.

Progressive diversification:

• The Bill also introduces affirmative-action provisions whereby public authorities are obliged to progressively realise diversification of their workforces by recruiting members of disadvantaged sections excluded from society, such as transgender persons or persons with disabilities.

Ensures bipartisan:

• 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 go well for judicial independence, the bill proposes appointments to the Commission by political process.

AS PER DATA

• The Housing Discrimination Project at Jindal Global Law School has shown how extensive housing discrimination is across the country.
  • “Silent segregation” on the grounds of marital status, gender, sexual orientation or eating preferences are followed in several housing societies and residents’ associations.
• The recent Pew Research Center Report has confirmed that a substantial number of Indians prefer not to have a person from a different religious community as their neighbour.

CHALLENGES

Lack of laws:

• India is one of the few liberal democracies without comprehensive anti-discrimination legal framework a framework.
• Thus, absence of a proper legal recourse for those who suffer from discrimination makes matters worse.

Social prejudice:

• Despite the supreme court of India had struck down Section 377 of the Indian Penal Code, still the members of LGBTQIA+ community continues to face strong social prejudice.
  • Section 377 of the Indian Penal Code was read down by the Supreme Court of India to exclude consensual relations between adults of the same sex.

Gaps in the constitutional  provisions:

• The article 15(1) of the Constitution of India prohibits the state from discriminating against individuals on basis of certain protected characteristics such as religion, race, caste, sex and place of birth.
  • But it does not bar private individuals or institutions from doing what the state is not permitted to.
  • Nor does it expressly list ethnicity, linguistic identity, nationality, marital status, sexual orientation, disability, physical appearance and other personal characteristics as prohibited grounds of discrimination.

Evolved forms of discriminations:

• The understanding of discrimination has been evolving over the years.
  • Now discrimination can be based on the combination of two or more grounds. This was highlighted by the Supreme Court, in Patan Jamal Vali vs State of Andhra Pradesh.
  • In this case the court recognised intersectional discrimination — discrimination on the basis of the intersection of personal characteristics, such as that faced by Dalit women as Dalits, as women and in the unique category of Dalit women.

Indirect discrimination:

Discriminatory practices may also be indirect in nature, whereby policies that seem neutral and not expressly targeted at a particular group, still cause a disproportionate adverse impact on disadvantaged sections of society.

NEED FOR LEGAL REMEDIES

• Since discrimination operates on a wide variety of grounds, legal remedies are needed for its victims.
  • A comprehensive anti-discrimination legal framework is required to fill the existing legal lacunae.
• The Sachar Committee, in 2006, recognised the need for an anti-discrimination law. This was further reiterated by the Expert Group on Equal Opportunity Commission.

STATES CAN PLAY ACTIVE ROLE

• States have a vital role in strengthening our right to equality.

• Since a central Bill cannot cover subjects that are under the exclusive jurisdiction of State governments.
• The States should lead the way by enacting anti-discrimination laws in their respective jurisdictions.
• The State legislature can use its powers under Entry 8 of List III in the Seventh Schedule to the Constitution to enact an anti-discrimination law that attracts civil penalties for those who engage in discriminatory practices.
• Thus, if States take the initiative, the demand for a national anti-discrimination law to cover services and institutions under the domain of the Union government will be reignited.

CONCLUSION

Though an anti-discrimination law is not a panacea for the problems of inequality and social prejudice that are deeply rooted in our society, it is still a necessary step in this direction.

Reference:

1. https://www.thehindu.com/opinion/lead/a-kerala-model-for-an-anti-discrimination-law/article35270240.ece