Context:

Shashi Tharoor, MP, has urged the Kerala State government to enact an anti-discrimination law. Mr. Tharoor has written to the Minister for Law in this regard with a draft Bill, saying that a State legislation will help plug gaps in the legal framework on discrimination.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Fundamental Rights, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Dimensions of the Article:

  1. Introduction to prevalence of discrimination in India
  2. Article 15 Protection against discrimination
  3. Lacunae in the existing Article 15
  4. How is Discrimination practiced in the Society?
  5. Way Forwards

Introduction to prevalence of discrimination in India

  • Incidents of discrimination against individuals based on religion, caste, ethnicity, marital status, gender, sexual orientation and even eating preferences have become common in society.
  • This manifests itself in various forms including housing discrimination, discrimination in employment, etc.
  • The absence of proper legal recourse for those who suffer from discrimination only makes matters worse for the victim.
  • Despite some existing laws and judicial precedents, the existing social stigmas act as a hurdle in countering the existing discriminational attitude in Indian society.

Article 15 Protection against discrimination

  • According to Article 15, Discrimination is prohibited on the basis of: Religion, Race, Caste, Sex, Place of Birth or any of them (Mnemonic: RRCSP) ONLY and hence, the State can discriminate on the basis of other grounds.
  • Also, Discrimination on either of the above (RRCSP) grounds in combination with some other grounds is allowed. For example – No discrimination only on the grounds of caste but discrimination based on caste and backwardness is permitted.
  • Discrimination against a person is not allowed however positive discrimination or affirmative action is allowed.
  • While 15(1) is a direction only to the state, 15(2) is available against private individuals as well.
  • This right is available to INDIAN CITIZENS ONLY. Hence foreign nationals can be discriminated against vis-à-vis Indian citizens by the Indian state. Similarly, legal entities can also be discriminated against.

Lacunae in the existing Article 15

  • While Article 15(1) of the Constitution of India prohibits the state from discriminating against individuals on the basis of characteristics such as religion, race, caste, sex and place of birth, it does not bar private individuals or institutions from doing so.
  • Also, it does not expressly list ethnicity, linguistic identity, nationality, marital status, sexual orientation, disability, physical appearance and other personal characteristics as prohibited grounds of discrimination.

How is Discrimination practiced in the Society?

Discrimination practiced in India operates on various levels and can be categorised as direct discrimination, indirect discrimination or intersectional discrimination.

  • Direct Discrimination – is characterised by the intent to treat less favourably a person or a group.
    • Examples: An employer refuses to interview a candidate because he belongs to a scheduled caste. This is direct discrimination in relation to caste. An employer fires a female employee after her marriage because he makes a stereotypical assumption that married women do not make efficient workers. This is prima facie direct discrimination in relation to gender.
  • 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 disproportional adverse impact on disadvantaged sections of society.
    • Example: An employer pays part-time workers at a lower hourly rate than full-time workers, for doing the same work. A majority of part-time workers in his establishment are women but a majority of full-time workers are men. This is prima facie indirect discrimination in relation to gender.
  • Intersectional Discrimination – was highlighted by Supreme Court in Patan Jamal Vali vs State of Andhra Pradesh. Intersectional Discrimination happens when two or multiple grounds operate simultaneously and interact in an inseparable manner, producing distinct and specific forms of discrimination.
    • Example: 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.

Way Forwards

  • Anti-discrimination law: A comprehensive anti-discrimination legal framework is required to fill the existing legal lacunae.
    • It should bring within its mandates both private and public entities. All forms of discrimination should be acknowledged and dealt with in the law.
    • Such a bill must balance the anti-discrimination mandate with other rights guaranteed by the Constitution and it could be restricted in pursuance of a legitimate objective.
    • The article suggests that the States should lead the way, by enacting anti-discrimination laws in their respective jurisdictions. The anti-discrimination law should prescribe civil penalties for those who engage in discriminatory practices.
  • Institutional set up: There should be appropriate institutions outside the judiciary to adjudicate complaints of discrimination and to provide policy recommendations to the State government.
  • Affirmative action: The anti-discrimination efforts should be complemented via affirmative action to empower the historically marginalised sections of society.

-Source: The Hindu

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