[Editorial Analysis] A Kerala model for an anti-discrimination law

Mains Paper 2: Polity
Prelims level: Article 15
Mains level: Social Justice

Context:

• We have seen various types of discrimination based on caste, creed, religion, ethnicity, language etc.

• The absence of a proper legal recourse for those who suffer from housing discrimination only makes matters worse.

• The constitution’s Article 15 does not prevent private individuals or organisations from doing things that the government is not allowed to do.

• It also does not clearly ban discrimination based on ethnicity, linguistic identity, nationality, marital status, sexual orientation, handicap, physical appearance, or other personal traits.

• The time has come to think over it.

Forms of discrimination:

• According to a recent Pew Research Center report, a significant majority of Indians prefer not to have a neighbour from a different religious community.

• Despite the Supreme Court of India reading down Section 377 of the Indian Penal Code to exclude consensual interactions between adults of the same sex, social prejudice against members of the LGBTQIA+ community in India remains entrenched.

• In Patan Jamal Vali versus State of Andhra Pradesh, the Supreme Court recognised intersectional discrimination — discrimination based on the intersection of personal traits, such as that suffered by Dalit women as Dalits, as women, and as members of the distinct category of Dalit women.

• Discriminatory practises can also be indirect, where policies that appear neutral and aren’t explicitly targeted at a certain group have a disproportionately negative impact on disadvantaged groups.

Legal remedies :

• To fill the gaps in the law, a comprehensive anti-discrimination legislative framework is required. India is one of the few liberal democracies that does not have such a system in place.

• In 2006, the Sachar Committee recognised the necessity for anti-discrimination legislation. The Expert Group on Equal Opportunity Commission, led by Prof. N.R. Madhava Menon, reaffirmed this.

• Shashi Tharoor tried to revive the idea by introducing the Anti-Discrimination and Equality Bill, 2016 in the Lok Sabha but the Bill lapsed in 2019 with the dissolution of the Lok Sabha.

• States have an important role in promoting our right to equality.

• In any case, a national bill cannot encompass matters that are solely the responsibility of state governments.

• If States take the lead, the desire for a national anti-discrimination law that covers services and institutions under the Union government’s jurisdiction would be renewed.

The Kerala Bill:

• The draft bill prohibits employers, landlords, traders, service providers, private persons performing public functions, and public authorities, from discriminating on grounds of caste, race, ethnicity, descent, sex, gender identity, gender expression, pregnancy, sexual orientation, religious identity, tribe, disability, linguistic identity, HIV-status, nationality, marital status, dietary preference, skin tone, physical appearance, place of residence, place of birth, age or analogous characteristics which are beyond the control of an individual or those that constitute a fundamental choice.

• At the same time, the Bill strikes a balance between the anti-discrimination duty and other constitutional rights.

• The anti-discrimination obligation might be limited to achieve a reasonable goal. The bill also includes affirmative action rules, which require public employers to gradually diversify their workforces by hiring members of disadvantaged groups who are marginalised in society, such as transgender people or people with disabilities.

• Because of the backlogs in our legal system, the bill creates a ‘Kerala Equality Commission’ to hear complaints and provide policy recommendations to the state government.

Conclusion:

• If passed, this bill will be the most significant expansion of civil rights in the state since the Constitution’s inception, and it could serve as a model for other states.

• We recognise that an anti-discrimination statute is not a solution for our society’s deep-seated problems of inequality and social prejudice.

• Nonetheless, it is a necessary move — a notion that has reached its peak.

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Prelims Questions:

Q.1) With reference to the ‘Ministry of Co-operation’, consider the following statements:

1. The ministry will provide a separate administrative, legal and policy framework for strengthening the cooperative movement in the country.

2. The Ministry will work to streamline processes for ‘Ease of doing business’ for co-operatives and enable development of Multi-State Co-operatives (MSCS).

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: C

Mains Questions:

Q.1) What are the various challenges behind the discriminations persist in Indian Society? Discuss in light of draft Kerala anti-discrimination Bill.

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