– Aadhirai S, Deekshitha Ganesan and Jayna Kothari
India has a robust Constitution and several anti-discrimination statutes that guarantee equality and prohibit discrimination on various grounds. However, these laws are fragmented and inadequate, protect only specific identities, do not address discrimination on multiple grounds, do not apply to the private sector and are not uniform in terms of remedies. There is no comprehensive equality legislation that addresses these concerns. CLPR, therefore, drafted the Equality Bill, 2019 as an over-arching legislation to prohibit discrimination on the basis of various characteristics and obligations to promote equality.
Gaps in Existing Statutes
Our work began with a study on intersectional discrimination and research on the implementation of equality and anti-discrimination legislations in India. Anti-discrimination legislations in India generally recognise only single axis-discrimination and not discrimination based on multiple identities. Only the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) criminalises discrimination based on both caste and gender. Further, most identity-based legislations in India are primarily penal statutes. The Rights of Persons with Disabilities Act, 2016 is one example of legislation that provides for welfare measures but even this law places positive duties and obligations mainly on public authorities and not on the private sector. Hence there are serious gaps in existing statutes.
Previous attempts at drafting equality legislations
Previous efforts at drafting equality laws in India attempted to bridge some of these gaps. The Sachar Commission recommended an institutional framework to promote equality and a ‘diversity index’ and The Equal Opportunities Commission Bill, 2008 built on the former. The Equal Opportunities and Diversity (Affirmative Action for Scheduled Castes and Scheduled Tribes) Bill, 2003 and Promotion of Equal Opportunity and Prohibition of Discrimination Against the Scheduled Castes and Scheduled Tribes in Matters of Employment (In Services, Trade, Business, Commerce, Contract, Construction, Transport or Other Utility Services in Private Sector) Bill, 2004 were drafted to address caste discrimination in the private sector. The most recent effort at drafting a single equality law was the Equality and Anti-Discrimination Bill, 2016 introduced as a private member bill by Shashi Tharoor, inspired by the Equality Bill, 2016 drafted by Tarunabh Khaitan. However, none of these Bills addresses intersectional, structural and systematic discrimination or discrimination specifically in the area of education, employment, housing, health and public places.
The Equality Bill 2019
CLPR’s Equality Bill 2019 builds on these efforts and presents a new equality law model. It has examined other equality legislations the world over including The UK Equality Act, 2010, The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 of South Africa and the Victorian Equal Opportunity Act, 2010, the United States draft Equality Bill, 2019 and the United States Justice for Victims of Lynching Act, 2018 among others.
The bill is organised into six chapters – Definitions, Prohibited Conduct, Prohibition of Discrimination in Certain Areas, Duty to Promote Equality, Equality Courts, and the Equality Commission. The Bill guarantees equality for persons with protected characteristics of caste, race, ethnicity, descent, sex, sexual orientation, gender identity, tribe, nationality, disability, marital status, pregnancy, health (including HIV/AIDS status), occupation, political opinion and belief, linguistic identity, place of birth, age, migration, religion, refugee status, socio-economic status, occupation, food preference or any combination of these characteristics. It prohibits different forms of conduct such as direct and indirect discrimination, discrimination by association, intersectional discrimination, systemic/structural discrimination, hate speech, harassment, segregation and boycott, victimization and lynching. The Equality Bill, 2019 seeks to establish Equality Courts for complaints under the law and focuses on providing civil remedies except in the case of lynching, which is also defined as a criminal offence in light of the directions of the Supreme Court in Tehseen Poonawalla vs. Union of India & Ors. Finally, a significant part of the Bill imposes positive duties on the State and private persons to promote equality.
In all these ways, we believe that the Equality Bill 2019 makes an important contribution, will initiate debate and conversations on equality in the country, and, we hope, is seriously considered for introduction.