The need for an anti-discrimination law
In our country, the problem of racism is exacerbated by other historically ingrained forms of discrimination, along the lines of caste, class, gender, and religion among other things.
Defining private discrimination
- These prejudices, which pervade every aspect of life, from access to basic goods, to education and employment, are sometimes manifest. But, on other occasions, the discrimination is indirect and even unintended. The latter, however, is just as pernicious.
- The forms that it takes were perhaps best explained by the U.S. Supreme Court’s ruling in Griggs vs. Duke Power Co. (1971). There, the court held that an energy company had fallen foul of the U.S. Civil Rights Act of 1964 — which made racial discrimination in private workplaces illegal — by insisting on a superfluous written test by applicants for its better entry-level jobs. Although, on the face of it, this requirement was race-neutral, in practice it allowed the company to victimise African-Americans.
- In a memorable judgment, invoking an Aesop fable, Chief Justice Burger wrote that “tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.” On the contrary, the law, he said, resorting again to the fable, “provided that the vessel in which the milk is proffered be one all seekers can use.” That is, that it wasn’t merely “overt discrimination” that was illegal but also “practices that are fair in form, but discriminatory in operation”.
Private discrimination in India
- Article 15(2) stipulates that 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. Yet, on occasion, this right, which applies horizontally, inter se individuals, comes into conflict with the rights of persons to associate with others, often to the exclusion of certain groups. This is why every time a case of discrimination is brought, the party that discriminates claims that he possesses a liberty to do so, that he must be free to act according to his own sense of conscience.
- The Supreme Court, in 2005, in Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others, endorsed one such restrictive bond, when it ruled in favour of a bye-law of a Parsi housing society that prohibited the sale of property to non-Parsis. This right to forbid such a sale, the Court ruled, was intrinsic in the Parsis’ fundamental right to associate with each other. An overruling of the verdict in Zoroastrian Cooperative, while desirable, is unlikely, however, to serve as a panacea.
- India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation. In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law which prohibits unfair discrimination not only by the government but also by private organisations and individuals.
- In India, there have been a few efforts to this end in recent times. Shashi Tharoor introduced a private member’s bill (drafted by Tarunabh Khaitan) in 2017, while the Centre for Law & Policy Research drafted and released an Equality Bill last year.
- These attempts recognise that our civil liberties are just as capable of being threatened by acts of private individuals as they are by the state.
- Ultimately, our rule of law must subsume an understanding that discrimination partakes different forms. Any reasonable conception of justice would demand that we look beyond the intentions of our actions, and at the engrained structures of society.
- This does not mean that we need to live under an illusion that a statute will resolve our systemic biases, that we will somehow magically transform ourselves into the kind of nation that B.R. Ambedkar envisioned.
- But, a rededication to our original constitutional commitment could be worthwhile. To that end, the idea of enacting a law that will help ameliorate our ways of life, that will help reverse our deep-rooted culture of discrimination, is worth thinking about.