Ending discrimination: 'It is not just about majority and minority but also about attitudes'

India is among the few countries with a constitutional commitment to a liberal democracy that nevertheless lack a comprehensive, multi-ground, antidiscrimination legislation. Antidiscrimination law remains a key demand of groups representing women, gays, lesbians, transgendered persons, and persons living with disability. Member of Parliament Shashi Tharoor introduced an Anti-Discrimination and Equality Bill 2016 in Lok Sabha on March 10. Tharoor has acknowledged the contribution of Tarunabh Khaitan, an Associate Professor in Law at the University of Oxford, who happens to also be the author of A Theory of Discrimination Law (Oxford University Press, 2015), in drafting the bill.

Khaitan elaborated on the idea behind this bill in an e-mail interview. Excerpts from the interview.

What prompted the idea of this bill?
At a general level, the Bill is an effort to realise Dr Ambedkar’s vision of an India free of unfair discrimination and the founding ethos of the Indian Constitution. The policy debate on an antidiscrimination law has been going on for about a decade and a half. The Bhopal Declaration issued in 2002 seeking to chart a new course for Dalits welcomed “winds of change the world over” towards inclusion and diversity and against discrimination.

A conversation on the need and shape of an antidiscrimination law began after the Sachar Committee recommended it in 2006. While the UPA [United Progressive Alliance] government did briefly consider setting up an Equal Opportunity Commission, the idea was quietly buried (at any rate, the Equal Opportunity Commission Bill it had drafted was rather underdeveloped).

Recently, the NDA [National Democratic Alliance] government recommended that states should prohibit discrimination in housing when framing rules under the Real Estate Act. So, there seems to be a cross-party consensus on the broad idea.

It was time to move the policy debate on to the concrete shape the law should take. So I spent the last three years working on a Bill, discussing it with activists, lawyers, politicians, academics across India. Rohith Vemula’s tragic death gave particular urgency to the issue. I believe that if such a Bill had been in place in India, it might have helped prevent at least some of the events that led him to take his own life.

What is distinctive about the bill?
This Bill is different from the existing patchwork of antidiscrimination laws in significant ways:

1.  It protects majorities as well as minorities. Almost every other previous law provided asymmetric protection, i.e. only to minorities.
2. It creates a civil rather than a criminal liability. The focus is on redress and compensation to the victim, rather than on punishment for the offender.
3. It is the first comprehensive bill in the sense that it covers all grounds of discrimination, and is not focussed on caste alone, or sex alone, or religion alone. It therefore highlights that while discrimination takes many forms, it is the same problem in every guise.
4. It applies to multiple sectors – employment, housing, goods and services – whether in the public or the private sphere.
5. It recognises the multiple forms of discrimination – not just direct discrimination, but also indirect discrimination, harassment, victimisation, boycott, segregation and discriminatory violence.
6. It has a dedicated, carefully designed, enforcement mechanism.

Yes, the inclusion of the majority definitely seems to be a distinctive feature here. Is there a specific reason for this?
For such a law to be successful, it needs to secure the backing of majorities. Symmetric laws are less likely to cause resentment. While it is true that usually minorities suffer discrimination, sometimes members of majority groups do so as well. Forced separation of consenting inter-faith couples (the Bill defines it as “segregation”) is as bad whether it is done by a majority or a minority community.

I believe that almost everyone in India has been a victim of some sort of discrimination, and almost everyone has also been a perpetrator.

Let’s face it. It is not just about majority and minority but also about attitudes. Patriarchy will not end simply by ending the domination and stereotyping of women. The gender roles that men are forced to comply with will also need to go.

Can a law really answer deep-seated prejudices – Muslims not getting houses in Bombay, Jain-only or vegetarian societies etc?
The law cannot challenge such prejudice, at least not directly. What it can ensure, however, is that people are not made to suffer adverse consequences because of one’s prejudices. This Bill, for example, will characterise a landlord’s refusal to give housing to Muslims as direct discrimination based on religion and forbid it. The hope is that, over time, these legal norms will translate into social norms. The law is but one of several ingredients of a multi-pronged strategy needed to tackle discrimination.

Just to clarify, though, the Bill does not prohibit Jains or vegetarians or indeed any other group from forming clubs or societies: in fact, Exception 7 in the Schedule to the Bill specifically permits such associations formed for the purpose of facilitating social interaction between members of a group – so long as such associations do not provide (or, if they do provide, discriminate in the provision of) housing, education, employment or other services in which discrimination is prohibited.

Where does the right to choose – whose house it is to let out, for instance – go as a result? Does the proposed bill deal with issues like this too?
Rights and freedoms tend not to be absolute. Even capitalist-liberal jurisdictions such as the US and the UK accepted decades ago that restrictions on discrimination are justified limitations on our freedom to choose our employees, tenants, students etc. The compatibility of these restrictions with the transformative Indian Constitution cannot be in doubt. Article 19 of the Constitution, which guarantees these freedoms, permits such reasonable restrictions.

The bill asks a housing society managing more than 50 residential units, and a private company employing more than 100 people, to prepare and submit an annual Diversity Index Report to the State Equality Commission. Is this really practical?
The expectation is that the Commission will propose simple forms for such reporting. Fifty and hundred are large enough numbers, so smaller housing societies and businesses are exempt from the requirement. Even those that are covered will have three years from enactment to comply.

But what about individuals? If a houseowner does not like the smell of certain kinds of food, for instance? Or is against non-vegetarian food in particular. What if it is not based on religion – after all, a majority of Hindus are non-vegetarian too. Should she not have the right whom to let their house to? What does the Bill say about such cases?
The question here is one of balancing competing interests. If I have idiosyncratic tastes and preferences – suppose that, for whatever reason, I don’t like people whose zodiac sign is Libra – the Bill permits me to indulge my idiosyncrasy. That is because our society is not organised in a manner in which zodiac signs generally determine what opportunities one can access in life.

Unfortunately, however, things like food preference do coincide with the opportunities one can avail, especially in the context of housing. There is ample evidence to suggest that whole swathes of neighbourhoods are unavailable to people who have certain dietary preferences – this is because food preference discrimination is not rare, but pervasive. What is worse, these neighbourhoods also often tend to be those which have better schools, better transport facilities and other public utilities.

Furthermore, given the connection between food preference on the one hand, and religion and caste on the other, housing discrimination based on food preference results in ghettoised communities.

Given the widespread nature of discrimination based on food preference in our society, the balance of legitimacy shifts from the permissibility of my preferences to ensuring that people’s opportunities are not restricted in such wholesale fashion. The homeowner’s preferences matter, but are outweighed in this case by the weightier interests of whole sections of society needing to access better housing.

How would such a law, if it existed, have helped prevent some of the events that led to Rohith Vemula’s death?
The facts of the case are disputed, so the following is based on alleged facts reported by the media.

First, the controversy about whether he was in fact Dalit or not would have been quite beside the point under this Bill. Section 4 of the Bill protects even those persons who are (correctly or incorrectly) perceived to be members of (a protected) group. So, the fact that Rohith’s self-presentation as a Dalit, and the fact that he was taken to be a Dalit, would have sufficed under the Bill.

Secondly, the University would have been covered by the Bill, both as a service provider (education) and as a public authority.

Third, if the University did indeed stop paying his stipend because he raised caste issues under the Ambedkar Students Association, that would have been a case of direct discrimination based on caste as well as belief.

Fourth, the subsequent events (his suspension and hunger strike) postdate the alleged assault on another student – if the suspension was indeed a result of the assault which did take place, the Bill would of course have permitted it (unless the investigation process was compromised for caste reasons, or if the punishment was disproportionately severe compared with other similar incidents). But if the suspension had anything to do with his caste (including his caste politics), it would have also been prohibited.

Fifth, at a more basic level, whatever the facts, Rohith felt aggrieved enough to kill himself. Had the law been in place, he might have considered filing a complaint under it, instead of seeking a solution in suicide. A judicial investigation could have found out the actual facts and offered redress based on those findings. The possibility of a legal redress might have intervened between the incidents themselves and the eventual suicide. This is why I think the very existence of a comprehensive law would have provided him with an avenue other than suicide.

Finally, the anti-victimisation provisions of the Bill would have prohibited the university from punishing Rohith in any way (directly or indirectly) for complaining under the law. So, someone who thinks they are being discriminated against can complain without fear of reprisals just for making a complaint.

What made you work with Sashi Tharoor and as a private bill? After all, we do know the fate of private members bills in general and the recent ones in particular.
Access to Indian politicians is not easy, and not many of them get back after a random contact by some academic. Tharoor did. He got the issue. He seemed committed. My previous attempts with the Delhi government were not getting any further. So I decided to work with him.

I know the limitations of a Private Member’s Bill. But this Bill has put the issue on the public agenda. It is for the government now to take ownership of the Bill and make sure that it is sent to a parliamentary standing committee for scrutiny and revision following a broad public consultation.

How confident do you feel about the passage of such a bill when the government seems to have decided to even stop funding research centres on social discrimination at several universities?
Given the fate of most Private Member’s Bills, not very confident. But this Bill has already received more attention than is usual for such Bills, so I remain cautiously optimistic. Even this public debate the Bill has sparked is valuable. I cannot predict how the government will react. But in our federal system, there is the possibility for a state government to take up the issue and legislate on it as well (one recalls that Right to Information Acts were first passed by states, building up a momentum for a central legislation).

The decision to stop funding research into social discrimination is, of course, very unfortunate.

Since the bill may not realistically get passed in the near future, do you have any suggestions for countering discrimination, since you have studied the subject at great length?
Media coverage and public shaming might go some way in some cases, but it is very difficult to really deal with the pervasive problem of discrimination without a comprehensive law. An effective law will obviously not be sufficient, but it is necessary.

Is there any way that articles 14, 15, 16 and 17 of the Constitution could be strengthened with additional statutory protections in order to realise their intended purpose?
The Constitution primarily applies to the state, not to private parties. The language of Articles 15 and 17 are broad enough to apply to private persons too, but courts have given them limited interpretation. Even if this was broadened, you cannot have a system where everyone complaining of discrimination needs to approach the High Court or the Supreme Court to get redress (only these courts have the power to enforce constitutional rights). Only a statutory scheme, with a carefully designed local enforcement system, can really make a genuine difference.

That said, the judiciary has given a very narrow interpretation to Article 15. Our courts still understand discrimination in that article only as direct discrimination. They need to expand the meaning of discrimination to include the other forms in which it is practiced—as indirect discrimination, segregation etc. Furthermore, Article 15 does not include all grounds of discrimination. The judiciary needs to find creative ways (by relying on the general equality guarantee in Article 14) to include grounds like pregnancy or disability that are not mentioned in Article 15.

Did you look at the debate around the aborted anti-communal violence bill? Are there any lessons from that episode?
I think the main lesson from the anti-communal violence bill was that laws offering asymmetric protection (only to minorities) are very hard to get enacted, and harder still to enforce.

While the Bill exempts a place of religious worship, with respect to activities that are essentially religious, what does this mean in practice? Are you suggesting that a Muslim trust, for instance, will not be able to turn down a Hindu or Christian as an accountant, for example?
It cannot turn them down because they are Hindu or Christian. An accountant’s job is to keep accounts, their religion should really be beside the point.