The Delhi Anti-Discrimination Bill, currently under consideration of the Arvind Kejriwal-led state government, is facing many social, legal and political challenges. Drafted by Tarunabh Khaitan, the Bill is designed with NCT-Delhi in mind, but can be adapted for other states or even the Centre.
“This is a civil remedy that involves intricacies of social fabric. I have no doubt that we need this Bill, but we need to work on it more,” said Khaitan. The Bill creates “civil liability” for acts of discrimination that include direct and indirect discrimination, harassment and victimisation. Aggravated discrimination includes boycott, segregation and discriminatory violence. Under the draft Bill, the duty to refrain from discrimination applies not only to public authorities and private persons performing a public function, but also to all employers, landlords, traders and service providers.
“The aim of the Bill is not to let citizens remain passive to rampant discrimination prevalent in our society,” Khaitan added.
According to the draft Bill, protection against discrimination and aggravated discrimination will be (with a few exceptions) available “symmetrically” to dominant as well as disadvantaged groups and to majorities as well as minorities.
“The current draft Bill is a winner because it is symmetrical. Safeguarding only the minority or the disadvantaged group paves the way for an automatic conflict that deepens the gap which was meant to be bridged. If the rights and duties are equal for all sections, the law will become more effective,” said Shyam Babu, senior Fellow at the Centre for Policy Research.
Under the draft Bill, public authorities and private persons performing public functions will have a diversification duty to progressively increase the participation of substantially excluded disadvantaged groups.
Giving an example of a private authority in the US, Khaitan said, “Their firm gives incentives to employees becoming a part of the drive to exclude discrimination. They may hire interns from a disadvantaged section and incentivise their employee who would agree to mentor and train the intern. Such initiatives go a long way to help people see beyond prejudices.” The draft Bill permits voluntary affirmative action (reservation) in favour of the disadvantaged group if proportionate.
The draft Bill gives primary responsibility to district courts designated as “equality courts” for civil enforcement. A permanent and independent equality commission has the responsibility to promote the objectives of the Bill and aid its implementation. Protection orders against aggravated discrimination may be obtained from the magistrate’s court.
Saumya Uma, assistant professor at the National Law School, Bangalore, and assistant director of the Centre for Study of Social Exclusion and Inclusive Policy, said, “It is important that the equality commission is prevented from any political interference. It needs to be ensured that the commission stays financially and functionally autonomous and that whatever interventions the commission makes are effective.”
The draft Bill has been categorised under civil law and not criminal law. “The aim here is not to criminalise discrimination. It aims to create civic liability by means of apology,” Uma said. “A written apology would be more appropriate from the perspective of a victim. However, there should also be a guarantee of non-repetition. In case of repetition, heavy fine should be enforced,” Uma said.
However, class-based discrimination or discrimination within a family remained outside the ambit of the current draft. “Nepotism, too, has not been identified,” Khaitan pointed out.
“A conversation on an anti-discrimination law began after the Sachar Committee recommended it in 2006,” Uma said.