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Can the proposed Anti Discrimination and Equality Bill 2017 be a positive tool for change?

The bill was introduced by Member of Parliament Mr. Shashi Tharoor on 10th March in the Lok Sabha. The bill has been drafted in consultation with Tarunabh Khaitan who is the Associate Professor and Hackney Fellow in Law at Wadham College, Oxford University. The bill is listed under the ‘discrimination law project’, details of which can be found here.

The bill is a comprehensive piece of legislation that looks at rights of all persons and the need to preserve the sanctity of these rights in law. The drafting of the bill is said to have been undertaken as a response to several tragic events that have occurred across the country as a result of discriminatory practices, judicial upholding of Section 377 and the Rohit Vemula case have been quoted as examples. The bill draws strongly from our constitutionally enshrined values of equality, justice and freedom, keeping the need to protect people against discrimination at its core.

Certain provisions of the bill find reference in the anti-discrimination laws of countries such as Canada, South Africa, UK and even Australia to some extent. The bill takes into account several discriminatory processes that don’t find place even in laws of countries with supposed progressive anti discrimination laws. Passing of this bill could place Indian anti discrimination laws at the forefront in the world and serve as a model for similar global laws. What is the legal position on anti discrimination in India now? In India, the Constitution is the key legal instrument for effecting equality amongst citizens and providing for anti discriminatory practices. Legislations like the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 etc. have evolved over time to meet specific needs to address discriminatory practices as laws providing for criminal or civil remedies, welfare based opportunities and so on. There has been an absence of an overarching legal instrument that effectively challenges discrimination and advocates for equality across all spheres and is in keeping with modern times and the newer facets of discrimination it springs upon us. What does this bill propose?

The Anti Discrimination and Equality Bill starts with the line, “to ensure equality to every citizen of the country by providing protection against all forms of social discrimination.” and goes ahead to do just that. While the bill is vast and touches upon a myriad of discriminatory practices, here a few examples to highlight how truly encompassing the bill is:

  • It looks at protecting food preferences as right by choice. Oft food choices are also a resultant mix of other identity politics and socialisation In light of the recent beef ban and calls for making India a vegetarian nation - such a provision brings food based discrimination to light. This bill realises that what food one wishes to consume is inherently their choice.

  • It makes the application of stereotypical assumptions about persons in practise, regulations, policy etc., prima facie (based on the first impression) directly discriminatory. It uses illustrations like: “An employer fires a female employee after her marriage because he makes a stereotypical assumption that married women do not make efficient workers.” OR “A hospital hires only female nurses based on the stereotypical assumption that women are more caring than men.” Both these cases are seen as prima facie direct discrimination in relation to sex.

  • It has provisions for harassment that go beyond the general understanding of the term and looks at any communication or conduct that creates an intimidating, hostile or bullying environment for said person as harassment. An illustration used is, “A schoolboy, who refuses to play sports, is called a 'sissy' by his teacher.” This is slated as an example of harassment with reference to gender identity.

  • The bill expands the terms of boycott and segregation to include more everyday discriminatory practices as well. For e.g., it looks at khap panchayat orders for stopping interactions with the family of a inter religious couple as boycott based on marital and religious lines. Another illustration given is, “An adult consenting couple, walking hand in hand in a park, is set upon by a mob which, on discovering that they are not married, forces the woman to tie a rakhi on the man's wrist.” The hope is that this will improve prosecution possibilities for such discriminatory practices and reduce their occurrence. The bill is unique in that it look at a type of discrimination that happens in such minute everyday ways but that leaves a lasting impact and enforces a moral code that is entirely that of the enforcer with no regard for wishes of those it is directed towards.

  • It also calls for the setting up of a ‘Central Equality Commission’ with a diverse range of members, also accounting for participation by civil society members. It provides for measures to ensure the independence of the Commission and gives it varying functions that not only include working towards ending all forms of negative discrimination but also include providing legal remedy to persons affected. The bill also envisages a self review mechanism where the Commission is empowered to assess the functioning of the bill from time to time and make recommendations towards its improvements. State Equality Commissions are also provided for.

How can this bill be a tool for positive change?

Uniquely, this bill attempts to account for intersectionality, recognizes varied gender identities and sexualities and provides protection for persons across the spectrum. It also has positive measures to reduce discrimination under the head of diversification, through several means like scholarships, recruitment etc. There is a focus on protection and compensation of the aggrieved person rather than simply on prosecution.

On a reading of the bill we can already get a sense of the ways in which each person may be facing discrimination daily. As a student, it is difficult to find housing because landlords only want to rent out to families. As a young professional it is difficult to exercise rights at an organization where you are probably interning for no pay. As a Dalit person it is more difficult to get a job or educational opportunities. In several cases these identities overlap and set back the person due to added discrimination. This bill places all these forms of discrimination and more under the scanner. It also places a duty on bodies to measure diversity under the Diversity Index and work towards building a more equal society.

The bill is a reminder to all of us of the values our nation is built on, and the values that are needed globally going forward. Irrespective of the future of the bill, it has brought to light in one condensed document the number of atrocities meted out against the citizens of India. It shows us how much further we, as fellow citizens, have to go to make non discrimination a reality, both legally and in our everyday practices.

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