From UPSC perspective, the following things are important :
Prelims level : Article 15(1)
Mains level : Paper 2- Need for anti-discrimination law in India
“Silent segregation” on the grounds of marital status, gender, sexual orientation or eating preferences are followed in several housing societies and residents’ associations. Legal remedies are needed for its victims.
Issue of the prevalence of discrimination on various grounds
- 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.
- The absence of a proper legal recourse for those who suffer from housing discrimination only makes matters worse.
- Social prejudice against members of the LGBTQIA+ community in the country remains strong, despite Section 377 of the Indian Penal Code was read down by the Supreme Court of India.
- In April, the Supreme Court, in Patan Jamal Vali vs State of Andhra Pradesh, recognised intersectional discrimination.
- It is 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.
- Discriminatory practices may also be indirect in nature, whereby policies that seem neutral and not expressly targeted at a particular group, still cause a disproportional adverse impact on disadvantaged sections of society.
Why Article 15(1) is not enough
- 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.
We need a comprehensive anti-discrimination legal framework
- A comprehensive anti-discrimination legal framework is required to fill the existing legal lacunae.
- India is one of the few liberal democracies without such a framework.
- 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 headed by Prof. N.R. Madhava Menon.
- The States can lead the way, by enacting anti-discrimination laws in their respective jurisdictions.
- States have a vital role in strengthening our right to equality.
- 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.
- And 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.
- The law should have provisions that prohibit employers, landlords, traders, service providers, private persons performing public functions, and public authorities, from discriminating.
- Law should prohibit discrimination 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.
- The law should also balance the anti-discrimination mandate with other rights guaranteed by the Constitution.
- The anti-discrimination mandate can be restricted in pursuance of a legitimate objective.
- Affirmative-action provisions can be included whereby public authorities are obliged to progressively realise diversification of their workforces.
Consider the question “Article 15(1) of the Constitution of India prohibits the state from discriminating against individuals on basis of certain protected characteristics. But it does not bar private individuals or institutions from doing what the state is not permitted to. In light of this, discuss the need for anti-discrimination law in India and its provisions.”
We must recognise that anti-discrimination law is not a panacea for the problems of inequality and social prejudice that are deeply rooted in our society. Nevertheless, it is a necessary step — an idea whose time has come.