(This is the fourth piece in our ICLP Round Table on CLPR’s Draft Equality Bill. This post is by Anmol Jain.)
This article concerns Part V of the Draft CLPR’s Equality Bill, 2019, which deals with the constitution of district-level equality courts to enforce the non-discrimination rights envisaged under the Bill. I attempt to lay down a background for appreciating the constitution of equality courts and their desired manner of functioning.
The Idea of Equality Courts and the Need to Establish Them
The Constitution guarantees several civil, political and socio-economic rights including the right to equality and the right against discrimination. When violated, the Supreme Court and the jurisdictional High Court have been empowered to take necessary actions. A question then arises that why we need another judicial forum in the form of equality courts. The answer is simple: ‘the constitutional courts are not approachable, affordable and accessible for a large part of the Indian masses.’ A geographically vast country like India has only one Supreme Court with no regional benches, and many States and Union Territories sharing High Courts (especially in the Northeast) among themselves. For instance, if one’s rights guaranteed under the Constitution are violated in the Andaman and Nicobar Islands, the remedy lies more than 1000 km away in Kolkata. The hefty fees of the lawyers in the High courts seems realistically unaffordable for a (severely) economically unequal citizenry that remains illiterate with the functioning of the courts.
For a true constitutional win, the State must take the courts closer to the public. South Africa, a country with a similar history as ours but in the form of Apartheid, aimed to realize this goal by constituting equality courts under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. India is already on the path of creating such courts and one of its first kind can be perceived under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which creates Special Courts and Exclusive Special Courts to address the acts of discrimination having their locus in the caste of the victim. Similarly, the Transgender Persons (Protection of Rights) Bill, 2019, if passed, would be another statute providing sanctions under a positive law for the violation of the right to non-discrimination. This is a partial success as Article 15 prohibits discrimination on the grounds of religion, race and place of birth, apart from caste and sex.
Studied in this background, one cannot but appreciate the relevance of Chapter V of the CLPR’s Equality Bill, 2019, which provides for the constitution of equality courts. Equality courts, functioning at the District level, shall bring constitutional adjudication closer to the public and fulfil the dreams of attaining true equality. They might act as the necessary catalyst towards the fulfilment of our constitutional promises.
One of the most important reasons for their success could be the rich constitutional common law that the Supreme Court and the High courts have created since 1950, which shall help the equality courts in uniform functioning. The constitutional courts could be seen as driving the Constitution towards transformational successes by valuing individual rights with a proper balancing with the collective security of the society. The richness of rights’ interpretation in India can be best captured by a recent decision of the Madras High Court, wherein the court held a marriage between a man and a trans-woman as valid. Moreover, the manner in which the DPSPs have now been perceived as the means for achieving the goals of Part III unlike the initial years when they were considered as secondary to Part III shall guide the Equality courts in the proper enforcement of the constitutional promises.
The Desired Functioning of the Equality Courts
The arguments in this part are made after a study of the equality courts functioning in South Africa, which can provide us with the necessary guidance about how things can go wrong or remain bad if not properly implemented.
Proponents of Legal Realism argue that ‘judges determine the outcome of a lawsuit before deciding whether the conclusion is, in fact, based on an established legal principle.’ Jerome Frank has noted that the decision reached by a judge is not based on the systematic understanding of the facts applied to the law, but on ‘judicial hunch’ or the ‘intuitive sense of what is right or wrong in the particular case.’ These intuitive results are largely determined through the socio-economic background, political inclinations, cultural understanding, personal experiences and individual characteristics of the judge. It has been argued that “since the ‘rules’ allow the judge considerable free play, he or she can in fact decide the case in a variety of ways, and the way that is in fact adopted will be more of a function of such factors as the judge’s psychological temperament, social class and values than of anything written down and called rules.”
There have been instances of judges forwarding their personal notions in the equality courts of South Africa. In one instance, a judge belonging to the dominant class imposed a restriction on the rights of the blacks to sing their struggle song by employing questionable reasoning. Even in India, we have seen that in the late 1990s, the Supreme Court delivered a number of judgments expounding on the philosophy of Hindutva, while allowing political speeches and pamphlets grossly asking for votes based on religious lines. More recently, we have seen Justice Sen of the Meghalaya High Court and Justice Chitambaresh of the Kerala High Court, speaking through religiously coloured words. This depicts how discriminatory tendencies remains embedded in the judiciary, which dangerously ‘continues to favour the socially and economically dominant members of the society.’
For successful functioning of the equality courts, it is necessary to secure the judges from being dominated by their discriminatory ideologies. They are one of the most important elements responsible for the success or failure of a justice system as they speak for the courts and their actions determine the level of confidence public shares for the entire institution. If we want people to approach the equality courts, we must first ensure that the Judges are well trained and properly sensitized to handle the matters of discrimination. Therefore, Clause 4 of Section 24 of the Equality Bill, which states that ‘Every judge presiding over a designated Equality Court shall receive a prior training on this Act, in the manner as may be prescribed under the Rules’, becomes extremely important and practically significant.
Apart from judicial sensitization, the Government would also need to ensure that the public is adequately aware of the equality courts and that they are accessible in terms of finances and judicial process. It is disheartening to see that the Government has decreased the Budget for the law and justice and has only earmarked one crore rupees for the advancement of transgender persons under the Transgender Persons Bill. Unless proper awareness campaigns are organized to educate people about their rights under the Bill and the judicial process required to be followed for their enforcement, the equality courts might end-up being just another theoretical attraction.
The courts could be based on the South African model, which has tried best to remove the barriers faced by public while approaching a court. It has made the courts to function in an informal manner, with case filing being nearly inexpensive for litigants and has provisioned for equality clerks as a guide for the litigation. We must ensure that the courts ‘operate with innovative and creative procedural and evidentiary rules that aim to maximise access to justice for victims of discrimination.’
Another important task for the Government shall be to ensure that the poor and underprivileged people have regular access to the courts. It has been noted by the South African Human Rights Commission that: “Equality Courts are not being utilized by the poor and vulnerable.” Majority of the complaints are filed by the dominant class people, who hire best lawyers ‘to overpower the undereducated complainants.’ Unless these deficits are overcome in our system, we might fail to achieve the noble aims of the Equality Bill.
The demand for a comprehensive anti-discrimination law is long pending and multiple attempts have been in the past. The reason is simple: it enlists the equality aspirations and non-discrimination responsibilities of the people in a specific and explicit manner, unlike the Constitution that has provided us with the overarching principles. The central stage is always afforded to the implementing body, which ensures that the statutory promises and objectives are fulfilled in their best essence. The constitution of equality courts shall fulfil such purpose and shall help us in achieving the constitutional promise in a more effective manner through forums closer to the public. Once properly sensitized, the equality courts shall bring with themselves the people-friendly and innovative tools for addressing individual actions of discrimination and might possess the possibilities of meeting the transformational goal of the Constitution.
Quoting from Narnia Bohler-Muller’s work: “the creation of the Equality Courts in South Africa presents us with numerous possibilities. They do not depict in and of themselves the end of oppression but they do provide us with the hope for the future.” Hoping the same for our mature democracy, we must now endeavour to shift the constitutional adjudication at the ground level.