Author: Lavanya KS, III year of B.A.,LL.B from Chennai Dr.Ambedkar Government law college.
The examination of Article 15 and the types of discrimination that takes place in Indian society. The legal and constitutional gaps that exist and the need for legal remedy in the form of Anti-discrimination and equality law.
The types of discrimination are recognized and take place on three grounds. They are direct discrimination, indirect discrimination, and intersectional discrimination. This discrimination is seen in various instances and various forms. For example, When you searching for a new house for rent you might face discrimination if you belong to a different religion or different caste. Even those who are single might be discriminated against by their marital status.
Discrimination, Article15, new law, equality, fundamental rights, constitution, anti-discrimination law.
In recent studies show that housing discrimination is widespread in India. Especially it based on religion, caste, sexual orientation, marital status, and dietary preferences. Similarly, when one is applying for jobs they might face discrimination on the grounds of sex, color, sexual orientation, weight, physical disability, etc…
For example, if an air hostess is above the prescribed weight she will be rejected even though if it is male in the same above prescribed weight they will allow him to continue his job.
Similarly in the way of education. In our educational systems, there is caste-based discrimination, or the dismissed line could be for ethnicity or lines of language. Even about accessing resources and accessing government benefits, there would be a variety of discrimination been done. All prejudice could be perpetrated either by the state or by private individuals / private institutions or organizations.
ARTICLE 15:- SHORTCOMINGS DUE TO ITS NARROW DEFINITION
Within our Indian constitution, article 15 deals with the right to equality and prohibits the state dir carrying out any discrimination on the grounds of religion, caste, sex, race, and place of birth. While this provision is crucial to uphold the fundamental right to equality it does have a shortcoming due to its narrow definition.
Because first, it prohibits the state from discrimination that means only government authority and organizations are prohibited to carry out discrimination only on these grounds.
Second, these grounds do not apply to individuals or private institutions, or organizations on other grounds especially on sexual orientation, dietary preferences, color, weight, physical appearance, and disabilities, etc.
DISCRIMINATED PEOPLE BECOME A DISADVANTAGED SECTION
So when such widespread discrimination in a society and when there is no constitutional or legal remedy. Then the people who are discriminated against will become the section of disadvantaged. Such bias occurs either directly or indirectly and it is also intersectional.
So certain forms of discrimination are direct. It targeted a particular group. Surveys have shown that many people in the country do not prefer to rent out their houses to share their neighboring house with a person of a different religion. So that is targeted discrimination against the people of different religions. Similarly caste-based exclusion or gender-based exclusion even they are also considered to be directly targeted discrimination.
On the other hand, there could be indirect discrimination as well which includes those policies and practices seen in a society that appears to be neutral and does not to be target a particular group. But still, it could have a disproportionate adverse impact on certain disadvantaged sections of society. For example, A social practice that seems to be neutral and not targeting any community might have a disproportionately adverse impact on a, particularly disadvantaged section.
LANDMARK CASE:- PATAN JAWAL VALI
The finally international discrimination has even been recognized by the supreme court of India by the landmark case of Patan Jamal Vali case. Here intersectional discrimination means that discrimination is based on the intersectional of personal characteristics. For illustration, Two or three grounds come together based on which discrimination is carried out. In this case, the Supreme Court took into account intersectional discrimination faced by Dalit women. The landmark case SC argued that the Dalit women faced discrimination not only on one ground but on two different grounds. She faces bias because she came from the Dalit community and she also faces gender-based bias because she is a woman. The existence of such intersectional discrimination will increase the vulnerability of this disadvantaged section. So in this context, we need a legal remedy to club the gaps and if not a constitutional amendment or at least need comprising law deals with discrimination and promotes equality in the society.
NEED A NEW LAW
We need an anti-discrimination and equality law that will extend to cover the private individuals or institutions as well it found to be discriminated such a law was recommended by Sarkar committee of 2006 which has set up to study the socio-economic and education conditions id Muslims in the country. The same recommendations were reiterated by the Expert Group on an equal opportunity commission which is headed by Prof N.R.Madhava Menon. So there exists a strong case in Anti-discrimination law that will specifically prohibit private individuals and private institutions from carrying out such discrimination.
INITIATIVE BY STATE GOVERNMENT
The initial step was taken by the state government because they can provide for more government extensive coverage on a specific issue concerning state subjects. The state government draws powers from Entry 8 of List III to use this power to enact Anti-discrimination law that will provide for a civil penalty for those who engage in discriminatory practices. Once the state takes the lead role then the Centre will also emerge to introduce 'Comprehensive National Law' against discrimination. This could set a stage for legal recognition of a wide set of discrimination practices seen in Indian society that covers a wide range of grounds. Because article 15 is limited so we need to bring Comprehensive National Law at the national and state level to cover other grounds of discrimination such as descent, gender expression, pregnancy, sexual orientation, linguistic identity, HIV status, marital status, dietary preference, skin tone, physical appearance, place of residence and several other characteristics which simply beyond the control of an individual.
Any discrimination that occurs on these grounds should be prohibited by a comprehensive law. This legal remedy provides a strict penalty to those who are engaged in discriminatory practices and it could lead to the establishment of an Equality Commission that looks into complaints and settles disputes and provides recommendations to the government. This comprehensive law at the national level or state level will see the way forward to end all forms of discrimination in society. Such a model bill was introduced in Kerala. If enacted, this would be a model for the rest of the country.
BY SAYING 'NO' TO BIAS BY MATURE
AND 'YES' TO ACQUIRE EQUAL BY NATURE