On this blog, we have extensively covered discrimination law jurisprudence in India. For people interested in the field, and based in Delhi, there is an event tomorrow that promises to be hugely interesting. The Centre For Policy Research is organising a workshop on a draft anti-discrimination bill, prepared by Dr Tarunabh Khaitan of the University at Oxford (originally at the instance of the Delhi government). Speakers include Dr Khaitan, Michael Kirby, Siddharth Narrain, Jayna Kothari, Saumya Uma and Shyam Babu).
You can access the draft bill here. I will put up the full text in a separate post on the blog. Readers will note that the Bill covers several aspects that we have discussed on this blog, and upon which the Indian Courts’ jurisprudence is either non-existent, or rather disappointing. Sections 5 and 6 of the Bill specifically define both direct and indirect discrimination, and Section, both of which are prohibited by Section 11. In this way, the Bill makes explicit what the Supreme Court gestured towards in Anuj Garg.
Of particular interest is Section 8 of the Bill, that defines a “boycott”, and subsequently makes the prohibition of boycotts part of the anti-discrimination duty. The prohibition upon boycott stems from a specific Indian history (and present), where oppression took the form of cultural, social and economic exclusion, predominantly on the basis of caste. As Anupama Rao records in her book, Caste Question, Ambedkar’s civil rights movements in the 1920s made access to village wells and village temples as their main demands. The Constitution itself nods towards this reality through Articles 15(2) and 25(2)(a), but, as we know, these provisions have been relatively ineffectual through our post-Constitutional history. Section 8 goes much further, defining a boycott as:
“… any overt or implicit abetment, support, encouragement, facilitation, or practice of any social, economic, political, cultural or other form of avoidance, ostracism, excommunication or exclusion that is targeted against or likely to adversely affect members of a protected group.”
Of similar import is Section 9, which defines ‘segregation’.
Section 12(6) of the Bill is of great interest as well, since it defines the relationships to which the anti-discrimination duty will apply. These include relationships of employment, tenancy, service provision, and those which involve public functions. In jurisdictions such as Canada, the nature of the “public”, in the context of the public/private divide, has received significant attention. In India, the term “public function” has been interpreted in the context of parties subject to writ jurisdiction under Article 226; it will be very interesting to think about whether the same meaning of the term should apply to anti-discrimination law.
Section 13 of the Bill prescribes a range of remedies, which are restricted to a civil nature. Leading on from this, Part D then imposes positive obligations of diversification, diversity training and affirmative action. On the lines of family courts, it provides for the setting up of dedicated Equality Courts within the existing trial court structure.
Over and above the substantive issues I have already flagged, it will be interesting, also, to discuss issues of legislative competence, especially with regard to specific non-discrimination duties against LGBT persons, in the teeth of the still-standing S. 377. In short, it promises to be a fascinating day of discussion and brainstorming.