India: Draft State Equality Bill
by Tarunabh Khaitan
( February 12, 2016, New Delhi, Sri Lanka Guardian) India is amongst the few regimes with a constitutional commitment to a liberal democracy that nevertheless lack a comprehensive, multi-ground, antidiscrimination legislation. The Bhopal Declaration issued in 2002 seeking to chart a new course for Dalits welcomed ‘winds of change the world over’ towards inclusion and diversity and against discrimination. A conversation on the need and shape of an antidiscrimination law began after the Sachar Committee recommended it in 2006. While the UPA government did briefly consider setting up an Equal Opportunity Commission, the idea was quietly buried. Antidiscrimination law remains a key demand of groups representing women, gays, lesbians, transgendered persons, and persons living with disability. The policy debate on an antidiscrimination law has been going on for about a decade. It is hoped that the existence of a draft Bill will give concrete shape to this conversation and draw attention to details.This Bill is one such effort. It was originally designed with NCT-Delhi in mind, but has been adapted for any other state. It was discussed at a workshop organised by the Centre for Policy Research, Delhi, on the 18th of December 2015. This draft of the Bill has benefited significantly from helpful comments from the discussants at the workshop—Shyam Babu, Jayna Kothari, Saumya Uma, Vidhu Verma, Siddharth Narrain—and from many other lawyers and activists (especially Gautam Bhatia and Danish Sheikh). Further comments and criticism are welcome.
Highlights of this Bill include the following:
The Bill creates civil liability (ss 13, 15) for acts of discrimination.
· Discrimination includes direct discrimination (s 5), indirect discrimination (s 6), harassment (s 7), victimisation (s 11) and aggravated discrimination.
· Aggravated discrimination includes boycott (s 8), segregation (s 9) and discriminatory violence (s 10).
· The duty to refrain from discrimination applies not only to public authorities and private persons performing a public function but also to public and private employers, landlords, traders and service providers (s 12(6)).
· Everyone has a duty to refrain from aggravated discrimination (s 14).
· The protection against discrimination is generally available symmetrically to dominant as well as disadvantaged groups and to majorities as well as minorities (ss 3, 4): to men as well as women, Hindus as well as Muslims, brahmins as well as dalits.
· Public authorities and private persons performing public functions have a diversification duty (ss 16, 17) to progressively increase the participation of substantially excluded disadvantaged groups.
· Public authorities have a duty to give due regard (s 21) to the need to eliminate discrimination.
· Voluntary affirmative action (s 12(4), 19) in favour of disadvantaged groups (s 20) is permitted if proportionate.
· District courts designated as Equality Courts (s 24) have the primary responsibility for civil enforcement.
· A permanent and independent Equality Commission (ss 23, 24) has the responsibility to promote the objectives of the Bill and aid its implementation.
· Protection orders (ss 30, 31) against aggravated discrimination may be obtained from the Magistrate’s court.
Here is the full text of the draft ;
