Delhi Equality Bill 2016: Why We Need To Be Discriminating About Anti-Discrimination

22/07/2016 11:46 AM IST | Updated 25/07/2016 8:40 AM IST

In 2015, Delhi Equality Bill was introduced by Dr. Tarunabh Khaitan, the revised version of which has been released in 2016. This Bill aims to further the objectives of the Indian Constitution to promote equality by ensuring that there is a comprehensive, multi-ground, single, anti-discriminatory legislation which imposes legal obligations of non-discrimination upon public as well as private entities -- this is with respect to both direct and indirect discrimination. Such a law is required due to the inadequacy of the anti-discriminatory provisions under the Constitution. The Bill, however, remains a poorly drafted legislation.

The major criticism of the Bill is that it imports the provisions of anti-discrimination legislations of other jurisdictions in a way that sometimes does not take into account contextual realities in India, and focuses only on broadening the ambit of the law. For instance, while defining "harassment" as a form of aggravated discrimination in one of its provisions, the definition of harassment given under the UK's equality law was incorporated because of its wide scope. This has cumulatively resulted into the creation of an overambitious legislation which causes serious infringement upon the liberty of private entities (persons of incidence).

Not narrowing the scope of the Act shall "unduly complicate the law or place undue burdens on employees and service providers"...

First, unlike the US and the UK equality laws, the Equality Bill, 2015 has a wider range of grounds upon which protection against discrimination has been provided. Moreover, these grounds provide an illustrative and not an exhaustive list of protected characteristics. For every right there is a correlative duty imposed upon the person of incidence, so by granting protection against discrimination on a vast multitude of grounds and leaving the scope of protection even on the basis of somewhat similar, but unstated grounds, the Bill imposes immense burden upon private entities. This situation could have been avoided by identifying that some grounds of discrimination are more serious than others: for example, sex-based discrimination is graver than discrimination based on food habits. Hence, only the former type of grounds should be accorded legal protection. It is, of course, praiseworthy that the Act provides protection from various forms of discrimination. However, the absence of a cap on the number of grounds that can be combined together to make a claim of discrimination, and also the non-existence of a pre-condition that only direct discrimination on multiple grounds shall be guarded against, is problematic. Not narrowing the scope of the Act shall "unduly complicate the law or place undue burdens on employees and service providers" as was predicted by the UK authorities while enacting their own anti-discrimination statute.

Moreover, the Bill identifies two categories of discrimination: simple discrimination and aggravated discrimination. Everyone has a duty to refrain from aggravated discrimination whereas the duty to refrain from simple discrimination lies only upon employer vis-à-vis employees, landlord vis-à-vis purchaser and tenant, trader vis-à-vis consumer, service provider vis-à-vis consumer, public authority vis-à-vis any affected person, private persons performing public functions vis-à-vis any person affected by their public function. This step to reduce the burden of obligations upon private entities is inadequate because of two reasons.

Not narrowing the scope of the Act shall "unduly complicate the law or place undue burdens on employees and service providers"...

First, the burden of proving simple discrimination lies on the applicant wherein he is merely required to establish a prima facie case of discrimination after which respondent has to prove that his conduct was a proportionate means of achieving a "compelling objective". The respondent's burden is extremely high because among the terms "legitimate objective", "important objective" and "compelling objective", the last is narrowest in its scope, the broadest being the first. Therefore, the burden of disproving the allegation is highest when the respondent has to establish that his discriminatory act fulfils some compelling objective. Therefore, under the Bill, it is more difficult for the respondent to disprove the allegation of discrimination than under the South African and the UK law where he is required to establish that discrimination was unfair and that discrimination was aimed at fulfilling some legitimate objective respectively.

Second, the Bill fails to differentiate between the purely commercial and quasi-commercial nature of relations between employer and employee, landlord and tenant, seller and buyer, etc. For instance, under the Bill, no tenant can be denied accommodation by the landlord solely because the former is in a live-in relationship. However, the Act fails to understand the difference between a situation when a hotel denies a room to an unmarried couple, and when, say, an elderly couple staying alone declines to accept unmarried persons as tenants in their house. The former demonstrates a purely commercial relation while the latter is an example of a quasi-commercial nature of relationship between a landlord and a tenant. Due to its failure to understand such distinctions, the Bill ends up encroaching upon the private lives of the persons of incidence.

In conclusion, the Bill has crossed the thin line between activism and obstructionism.

Further, there are other provisions, such as a very broad definition of 'harassment' that highlight the burdensome nature of the Bill.

In conclusion, the Bill has crossed the thin line between activism and obstructionism. This is evident in its attempt to import most of its provisions from the anti-discrimination law of South Africa, which is known for its broad scope. However, this has been done at the risk of ignoring a clear difference in the constitutional mandates of the two countries with regards to their objective of promoting equality. It also disregards the difference in the history of discrimination of both nations. And even as South Africa's law is blindly co-opted widely, little thought has been given to the serious problems faced in its implementation in that country. Therefore, the Bill needs to take a cue from countries like the US and limit the scope of imposition of liability upon private entities to only certain sectors (say education, employment, etc). This way the essential difference between law and morality shall be maintained and the Bill will not stand in way of government's economic objectives and initiatives

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