India has a unique distinction of being a democracy without comprehensive legislation to back the constitutional right of equality. This lack of legislation gives rise to certain issues. Every time the case of discrimination is brought the discriminating party claims that he is at liberty to do so. Not only this, in a certain case, the Supreme Court also endorsed such restrictive interpretation. All this points to the need for the comprehensive legislation.

Indirect and unintended discrimination

• More than 70 years after Independence, our society remains rife with structural discrimination.
• These prejudices, which pervade every aspect of life, from access to basic goods, to education and employment, are sometimes manifest.
• But, on other occasions, the discrimination is indirect and even unintended. 
• The forms that it takes were perhaps best explained by the U.S. Supreme Court’s ruling in Griggs vs. Duke Power Co. (1971).
• There, the court held that an energy company had fallen foul of the U.S. Civil Rights Act of 1964 — which made racial discrimination in private workplaces illegal.
• The company had insisted on a superfluous written test by applicants for its better entry-level jobs.
• Although, on the face of it, this requirement was race-neutral, in practice it allowed the company to victimise African-Americans.
• In a memorable judgment, invoking an Aesop fable, Chief Justice Burger wrote that “tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.”
• On the contrary, the law, he said, resorting again to the fable, “provided that the vessel in which the milk is proffered be one all seekers can use.”
• That is, that it wasn’t merely “overt discrimination” that was illegal but also “practices that are fair in form, but discriminatory in operation”.

Let’s look into 2 cases in India

1. Madhu vs. Northern Railway

• The verdict in Griggs was notably applied in the Delhi High Court’s 2018 judgment in Madhu vs. Northern Railway.
• There, the Railways had denied free medical treatment to the wife and daughter of an employee which they would otherwise have been entitled to under the rules.
• The Railways contended that the employee had “disowned” his family and had had their names struck off his medical card.
• The court held that to make essential benefits such as medical services subject to a declaration by an employee might be “facially neutral”, but it produced a disparate impact, particularly on women and children.
• But while this case concerned discrimination by the state, entry barriers to goods such as housing, schools and employment tend to function in the realm of private contracts.

Is Article 15 applicable in private contracts?

•  The Constitution is markedly vocal on this too.
• Article 15(2) stipulates that citizens shall not on grounds only of religion, race, caste, sex, or place of birth be denied access to shops, public restaurants, hotels and places of public entertainment.
• Yet, on occasion, this right, which applies horizontally, inter se individuals, comes into conflict with the rights of persons to associate with others, often to the exclusion of certain groups.

2. Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others

• This is why every time a case of discrimination is brought, the party that discriminates claims that he possesses a liberty to do so, that he must be free to act according to his own sense of conscience.
• The Supreme Court in 2005 endorsed one such restrictive bond, when it ruled in favour of a bye-law of a Parsi housing society that prohibited the sale of the property to non-Parsis.
• This right to forbid such a sale, the Court ruled, was intrinsic in the Parsis’ fundamental right to associate with each other.
• But in holding thus, the judgment, as Gautam Bhatia points out in his book, The Transformative Constitution, not only conflated the freedom to contract with the constitutional freedom to associate but also overlooked altogether Article 15(2).

Let’s look into the scope of Article 15(2)

• At first blush, Article 15(2) might appear to be somewhat limited in scope.
• But the word “shops” used in it is meant to be read widely.
• A study of the Constituent Assembly’s debates on the clause’s framing shows us that the founders explicitly intended to place restrictions on any economic activity that sought to exclude specific groups.
• For example, when a person refuses to lease her property to another based on the customer’s faith, such a refusal would run directly counter to the guarantee of equality.

India: A country with no legislative backing to the fundamental right to equality

• India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation.
• In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law which prohibits unfair discrimination not only by the government but also by private organisations and individuals.

Consider the question “Discrimination partakes different forms. And due to lack of any legislation backing the Right to Equality, this right is just as capable of being threatened by acts of private individuals as they are by the state.” In light of this, discuss the need for an act backing the Right to Equality and right against discrimination.”

Conclusion

Any reasonable conception of justice would demand that we look beyond the intentions of our actions, and at the engrained structures of society.  To that end, the idea of enacting a law that will help ameliorate our ways of life, that will help reverse our deep-rooted culture of discrimination, is worth thinking about.

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