C. Yamuna Menon
The proposed legislation addresses various forms of discrimination, including intersectional, structural and systemic discrimination. Passing of this Bill, can bring India to the global forefront in anti-discrimination laws and place it as a model to be followed globally.
Centre for Law and Policy Research has published its recently drafted Equality Bill, 2019. This Bill is a comprehensive piece of legislation that addresses various forms of discrimination, including intersectional, structural and systemic discrimination. The Bill is aimed at promoting equality, prohibiting discrimination through civil remedies, and establishing responsive institutions to address cases of discrimination. Few provisions of the Bill have taken inspiration from other jurisdictions like South Africa, UK and the state of Victoria (Australia).
Groups such as Dalits, persons with disabilities, women, elderly persons among other minorities continue to be routinely marginalized through discriminatory practices. Anti-discrimination laws in India adopt a single axis approach – where protections are available to specific groups who face marginalization. Examples of such laws include the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, the Rights of Persons with Disabilities Act, 2016 and the Transgender Persons (Protection of Rights) Bill, 2018. Sandra Fredman argues that in doing so, such legislations tend to neglect three important issues – (i) discrimination faced by persons with multiple identities (for example, age, a gender, a sexual orientation etc), (ii) differences within the group, and (iii) the role of power in structuring relationships in a society. CLPR’s draft Equality Bill, 2019 seeks to incorporate these suggestions made by Fredman.
The draft Equality Bill, 2019 covers wide range of identities as protected characteristics. These include caste, sexual orientation, gender identity, occupation, political opinion, age among others. The extensive list of protected characteristics in the Bill is aimed at ensuring that a large number of marginalized groups are able to access protections against discrimination. It prohibits different types of discrimination like direct, indirect, intersectional, structural and systemic. In addition to this, certain other conducts like hate speech and its dissemination, harassment, segregation etc are prohibited. Interestingly, the Bill also identifies lynching as an offence with criminal sanctions, following the Manipur Protection from MOB Violence Ordinance, 2018. Even though decades of anti-discrimination laws on singular grounds are active in India, they have not yielded efficient results. By specifically covering the areas where discrimination is likely to occur, such as employment, housing, education and healthcare, the Bill directly addresses the duties of the state, private persons and institutions in these areas. In doing so, the Bill considers the intention of the perpetrator to be irrelevant. This, in other words, is a way to address the well entrenched power structures in our society.
However, there is a likelihood of such extensive provisions, particularly where they impose duties on the private sector leading to challenges on conflict of rights. Such issues have already been highlighted during the discussion around draft Anti-Discrimination and Equality Bill, 2016. For example, the Bill places restrictions on the insurance providers in healthcare sector under Sec.14 (7). It places a bar on denial of insurance coverage based on age, prior health condition, disability, pregnancy and gender identity. Whether these constitute reasonable restrictions to stand the test of constitutionality or it directly infringes the trade and business rights under Art. 19(1)(g) is a question that requires attention.
The Bill makes a departure from other statutes by extending civil remedies as opposed to criminalizing discriminatory acts. This also ensures that the burden of proof is of a lower threshold which helps in better enforcement, unlike criminal law which mandates a higher burden of proof. The Bill requires the complainant to make out a prima facie case of discrimination. Consequent to this, the burden shifts to the respondent to prove the contrary.
In order to facilitate the enforcement, the Bill also proposes two types of authorities – Equality Commission and Equality Courts. The Equality Commission at central level is to be chaired by a former judge of the Supreme Court. It has wide array of powers like conducting investigation, advising government on the operation of this Bill, conducting visits to study cases of discrimination etc. The Bill proposes designating District Courts as Equality Courts. The idea of Equality Court was not present in Dr. Shashi Tharoor’s prior proposal which designated State Equality Commissions to enforce the law.
However, the Bill also raises some concerns which require further discussion. For instance, designation of district courts as Equality Courts will require adequate training of personnel to render remedies that understand the intent and object of the Bill. Our judicial mechanisms and decision making are not devoid of influences from patriarchal notions. For example, Ms. Indira Jaising had pointed out how judicial language perpetuate patriarchy, gender stereotypes and entrench biases that are detrimental to the marginalized. Another instance which depicts such biases is the conduct of rape trials in India. Pratiksha Baxi addresses how rape trials are gendered. In her own words, such trials do ‘not bring justice to the rape survivor but addresses and reinforces deeply entrenched phallocentric notions of justice’. It is crucial to divorce well-entrenched patriarchal ideas from influencing decision making on cases of discrimination. Even though the Bill allows appeals to High Court and Supreme Court, the remedies cannot be effective until our institutions shape themselves to recognize the inherent biases. We can hope that adequate training of personnel, be a step towards this.
In addition to this, the exceptions envisaged under Sec. 11 provide that classifying, referring, training employees based on protected characteristics will not be unlawful if those grounds are bona fide occupational qualification for the normal operation of the business. Recognizing bona fide occupational qualification as an exception will provide avenues for flouting the law. This is because employers can link qualifications to business requirements and thereby act discriminately in a disguised manner. The test of reasonability proposed in assessing whether the ground is bona fide, brings in uncertainty in interpretation.
Moreover, the Bill places restrictions on freedom of choice of people in private sphere. For instance, it places restrictions on housing and land under Sec. 15 wherein bar is placed on disclosing preferences in housing advertisements. Whether this infringes the freedom of choice of the owner of the premises will require scrutiny of this provision.
Overall, the Bill is a manifestation of the constitutional goals that lays the foundation of our nation. The current Bill breaks the shackles of old and obsolete laws currently in force. However, it also requires more discussion on certain provisions, as previously mentioned, in order to achieve balance of rights. Passing of this Bill, can bring India to the global forefront in anti-discrimination laws and place it as a model to be followed globally.
C. Yamuna Menon is a final year student of Law at the National Law School of India University, Bangalore.
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Categories: Constitutional Law, Legislation and Government Policy
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