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A law to fight unfair discrimination

A law to fight unfair discrimination

UPSC CSE Mains Syllabus: GS-2- Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

The prejudices, which pervade every aspect of life, from access to basic goods, to education and employment, are directly discernible. For eg: in the recent death of George Floyd. But, on other occasions, the discrimination is indirect and even unintended. This is true of private associations or groupings among societal members, where exclusion of some people is carried out subtly.

Provisions under Article 15:

Article 15(1)

It prohibits the state from discriminating against a citizen on grounds of religion, race, caste, sex, place of birth.

Article 15 (2)

Article 15(2) elaborates that no Indian citizen can be discriminated against on basis of religion, race, caste, sex, place of birth. It states that no citizen shall be denied access to shops, public restaurants, hotels and palaces of public entertainment. It also adds that no citizen shall be subject to any disability, liability, restriction or condition with the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Article 15 (3) and (4)

The article cannot be used as an argument against the special provisions made for women, children or any other backward classes. “Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes,” the article states.

Private discrimination:

  • Apart from discrimination by state it also incorporates discrimination by private individuals or groups. This right, which applies horizontally, inter se individuals,comes into conflict with the rights of persons to associate with others. That is when such association excludes 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 is he must be free to act according to his own sense of conscience.

This could be explained through a case,

  • The Supreme Court, in 2005, in Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others, endorsed one such restrictive bond.
  • It ruled in favour of a bye-law of a Parsi housing societythat prohibited the sale of property to non-Parsis.
  • This right to forbid such a sale was ruled by the court as intrinsic in the Parsis’ fundamental right to associate with each other.
  • But in doing so, the court not only conflated the freedom to contract with the constitutional freedom to associate, but also overlooked altogether Article 15(2).

Scope of Article 15:

  • At first thought, Article 15(2) might appear to be somewhat limited in scope.
  • But the word “shops” used in it is meant to be read widely.
  • A study of the Constituent Assembly’s debates on the clause’s framing shows us that the founders explicitly intended to place restrictions on any economic activitythat sought to exclude specific groups. 
  • For example, when a person refuses to lease her property to another based on the customer’s faith, such a refusal would run directly counter to the guarantee of equality.

Legislation against unfair discrimination:

  • 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 discriminationnot only by the government but also by private organisations and individuals.

Attempts at change

  • 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.

Way forward:

  • Ultimately, our rule of law must subsume an understanding that discrimination partakes different forms.
  • Any reasonable conception of justice should look at theengrained structures of society.
  • As we look to reset our societal arrangements in the wake of COVID-19, 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.

 Source:” The Hindu“.

POSSIBLE UPSC CSE MAINS QUESTION:

The time has come for India to enact a law that will help ameliorate and reverse our deep-rooted discrimination in the society. Comment considering the right to equality under the constitution.