The need for an anti-discrimination law

Context: There is a visible gap between the idea and operation of anti-discrimination in India. Re-dedication to our original constitution in devising a statute against discrimination is required 

Dimensions of discrimination:

• Permeation at every level: Exacerbated by historical ingrained forms of discrimination along the lines of caste, class, gender, and religion among other things.

• E.g.: recently Irfan Pathan pointed out the discrimination between the north and south in cricket which goes beyond the color of skins.

• Indirect and unintended discrimination: has led to a façade of practices that are fair in form, but discriminatory in operations.

• E.g: In U.S. Supreme Court’s ruling in Griggs vs. Duke Power Co. (1971), the judge held that putting a superfluous written test for hiring is an act of overt discrimination against the American-Africans.

• Neglect of Article 15: 

• Article 15(2) stipulates: citizens shall not on grounds only of religion, race, caste, sex, or place of birth be denied access to shops, public restaurants, hotels and places of public entertainment.
• State contracts: The Delhi High Court in Madhu vs. Northern Railway held the use of facially neutral regulation should take care of discrimination against women. 
• Private contracts: Entry barriers to goods such as housing, schools and employment tend to function at the realm of private.

• Liberty v/s equality: noticeable when the discrimination tends to take place in private contracts opposing the fundamental right of the person to associate with others.

• E.g: In 2005, SC ruled in favor of a bye­law of a Parsi housing society that prohibited the sale of the property to non­Parsis.

• No statute against discrimination: India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation.

Attempts at change:

• Private members’ bill: by Shashi Tharoor in 2017.
• Equality bill drafted and preleased by Centre for Law and Policy Research.

Way Forward: 

• Bring an all-encompassing law: Like in South Africa, that prohibits unfair discrimination not only by the government but also by private entities.

• Rededication to constitutional principles:  

• The meaning of the word ‘shops’ in Article 15 (2): should be read widely including private economic activity dealing with essential goods like housing. 
• Constituent Assembly debates: show that that the founders explicitly intended to place restrictions on any economic activity that sought to exclude specific groups.

Conclusion: There is a need to develop the idea of enacting a law that will help ameliorate our ways of life, that will help reverse our deep-rooted culture of discrimination