As Indians tried to make sense of the verdict in the five state assembly elections, Member of Parliament and Congress leader Shashi Tharoor on 10 March introduced a bill in the Lok Sabha which, if passed, may significantly impact the lives of millions of citizens across the country.
In the ensuing hullabaloo over the results, not enough attention was paid to the text of the Anti-Discrimination and Equality Bill, 2016, and its implications for Indian democracy. The bill draws on the freedoms and protections guaranteed by the Constitution to bring them to bear on a range of contemporary realities.
Apart from addressing minority communities, the bill takes into account the challenges faced by the majorities as well, creating a comprehensive framework to remedy a variety of injustices.
— Shashi Tharoor (@ShashiTharoor) March 15, 2017
The bill, which was drafted in consultation with Tarunabh Khaitan, Associate Professor and Hackney Fellow in Law at Wadham College, Oxford University, is available in the public domain.
"The Bill is an effort to respond, among other events, to Rohith Vemula's tragic suicide, which has put the need for an anti-discrimination legislation back on the political agenda," Khaitan told Live Law, a platform for legal news and analysis.
Although India is among the few regimes with a constitutional commitment to a liberal democracy, it still lacks a "comprehensive, multi-ground, anti-discrimination legislation," he added.
Tharoor is a rare exception among Indian MPs for taking up the fight against Section 377 of the Indian Penal Code (IPC), which criminalises sexual intercourse "against the order of nature". A legacy of the colonial rule, this archaic law is invoked to harass, intimidate, extort and penalise sexual minorities in India.
While the State claims these legal provisions are seldom used against its subjects, the reality is shocking. As a recent report brought to light, rape and assault on queer people are perpetrated, with impunity, on the strength of this regressive law.
Even a passing acquaintance with the Indian Constitution should give anyone a sense of the inclusiveness and fairness of the document. Yet crime is ubiquitous in India, its judiciary is burdened with a backlog of cases going back decades.
Atrocities against citizens take on a range of forms, often sanctioned by State actors like the police. From encounter killings to extrajudicial custody, the roster of injustice brims over. People in India live with the daily possibility of encountering crime in some form, small or large, in public or private spaces — sometimes for simply being themselves or having an opinion that defies the status quo.
The need for a comprehensive anti-discrimination bill was always keenly felt, but assumed fresh urgency last year in the aftermath of the suicide of Vemula, a PhD scholar at the Hyderabad University, who was allegedly persecuted for his anti-caste activism.
Even earlier, the Bhopal Declaration, issued in 2002, and the Sachar Committee report in 2006 have pointed out the systemic exclusion of Dalits and Muslims respectively from the mainstream, though crimes against these communities haven't really dipped in the intervening years.
From Minor To Major
From the lynching of a Muslim man in Dadri, Uttar Pradesh, in 2015 on suspicion of keeping beef in his fridge to the recent suicide of another Dalit scholar, J Muthukrishnan, at Jawaharlal Nehru University, in the heart of the national capital, violence against Muslims and Dalits hasn't abated. On the contrary, the incidence of such brutalities has been exacerbated by a growing atmosphere of intolerance of dissent — be it towards people's choice of diet, dress or patriotic sentiments.
In India, discrimination is no longer directed solely at the so-called minority communities, but really at anyone harbouring an opinion, belief or preference that doesn't conform to the establishment's view. If you don't stand up while the national anthem is played at a movie theatre, you make yourself vulnerable to abuse, even assault, no matter your religion, caste, sexual orientation or gender.
The anti-discrimination bill brings under its purview a range of incidents that could qualify as having an adverse effect on the life and well-being of a citizen.
Apart from reiterating the Constitutional commitment to affirmative action, it expressly protects employees, students, tenants, senior citizens from being discriminated against in spheres of work, housing, education, professional opportunities or medical facilities granted to them.
The attention to detail in the bill is commendable. From taking into account random searches faced by Kashmiri students in their hostel rooms to the intimidation of couples in public parks to mistreatment of people from the Northeast by landlords, often on racial grounds, the bill tries to cover as many scenarios as possible that may befall a citizen of this country.
By making anti-discrimination a principle that applies to people from all walks of life, race, religion, caste, gender, sexual preference and ethnicity, the bill seeks to highlight the universality of the aspiration to equality.
Even in the case of Section 377 of IPC, the letter of the law condemns any form of intercourse that does not lead to procreation. So, effectively, it applies as much to heterosexual people as to queers. A classic example of its dissonance within the existing legal discourse is in its application to transgenders, who are now deemed legitimate citizens of the country. But what value does such legitimacy have when it does not let people of the third gender to live and love fully?
In the end, the law can only go so far as to ensure due process is followed in the delivery of justice. The larger, more insurmountable, challenge is to alter the mindset of the society, which is being inflected by toxic politics and bigotry.
However, the availability of an instrument of redress against injustice cannot be under-estimated and for this we have to be grateful for the existence of the Anti-Discrimination and Equality Bill, 2016.
Tharoor and Khaitan hope that the Lok Sabha will now send the bill to a standing committee for scrutiny and revision in light of a broad public consultation.
Irrespective of its fate in the long run, the anti-discrimination bill, in its full articulation, will remain a testimony to the potency and robustness of India's Constitution and democratic principles. It will also be a reminder to the lawmakers to harness the full potential of these documents that defined India's post-Independence identity.
The full text of the bill can be read here.
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