The quality of governance is reflected in the executive as well as legislative acts. Divisive policies based on hatred can only lead to divisive and exclusionary legislations. Such laws are now enacted, reducing people into mere believers of one religion or another. These lawmakers do not view the people as citizens with multiple identities and independent thoughts. The laws meddle with social relations and personal intimacies as it occurred with the so-called anti-love jihad legislations. The rampant misuse of such laws further accelerates social divisions. No wonder that crowd lynching, hate crimes and communal conflicts are the new normal in the country.
On the other hand, a good policy can create egalitarian laws. In Tamil Nadu, non-Brahmins were appointed as priests in temples that belong to the Hindu Religious and Charitable Endowments Department, in tune with the poll promise by the ruling political front. In Kerala too, non-Brahmins including Dalits were appointed as priests in the temples under the Travancore Devaswom Board. These are, indeed, laudable gestures.
The fight against the caste system in India is not yet over. Caste remains a dominant factor in perpetuating societal disparity. There are also other factors such as sex and sexual orientation, marital status, disability, occupation, place of birth, etc., based on which many exclusionary practices continue. Discrimination often occurs by looking at language, food habits or even personal characteristics. When a woman is denied employment in private firms due to her gender, when a Dalit is denied entry to a hair-cutting saloon because of caste, when a transgender person is refused rental accommodation because of sexual orientation … one finds a long saga of private discrimination in society. This historically evolved bias and prejudice create martyrs when they reach their aggravated form. Honour killings and some of the Dalit suicides in India demonstrate this phenomenon.
These realities must be addressed not only by social reformers but by lawmakers as well. Harmful social practices and discrimination need to be legally addressed and effectively tackled. We need to learn how to legislate for the good, and how to take citizens as equals, in the constitutional sense. We need to reiterate the equality clauses contained in Articles 14 ,15 and 16 of the fundamental law, both in public and private lives.
The move for anti-discriminatory laws in India has a short history. The Sachar committee report (2006) recommended promulgation of such laws. Shashi Tharoor introduced a private Equality Bill in Parliament in 2017 that lapsed in 2019. There is no possibility for any such enactment by the Centre, given the political attitude of the present dispensation.
But the state governments can make a difference. Going by Entry 8 (actionable wrong), Entry 11 (administration of justice) and Entry 20 (social planning) under the concurrent list in the 7th Schedule of the Constitution, the state governments can enact equality statutes by focusing on regional and social specificities. Professor Tarunabh Khaitan from the University of Oxford and legal scholar Arvind Kurian Abraham have laid the thematic premise for such legislation and placed their suggestions in public domain. A draft Bill was submitted before the Department of Law in Kerala, which has now referred it to the Department of Social Justice.
The Bill placed in the Lok Sabha earlier by Tharoor is instructive for states as well. It tried to prevent discrimination based on “protective characteristics” that include caste, ethnicity, descent, sex, gender identity, pregnancy, sexual orientation, disability, religious or linguistic identity, nationality, marital status, food preference, skin tone and numerous other characteristics. It sought to prevent discrimination at workplace, service centres, lodges, clubs, etc., and dealt with various instances of human interactions and transactions. It tried to protect the disadvantaged from the vices of harassment, boycott, segregation and violence. It attempted to provide a voice for the voiceless and designed a platform for them to place their grievances.
An Equality Commission and an effective administrative mechanism under it were accordingly proposed. The Bill suggested to empower the authorities to intervene in concrete cases of discrimination and order damages or training or diversification measures. Investigation into complaints about harassment or victimisation was contemplated.
The Bill sought to evolve preventive mechanisms against the evils of human apathy. It thrived to promote welfarism and diversity. The Bill intended to arm magistrates with the power to issue protection orders to tackle aggravated forms of discrimination.
Fraternity and equality are great ideas interlinked with the notions of justice and liberty, as the Preamble of the Constitution proclaims.
A legislation also epitomises a political culture. It can be emancipatory and revolutionary. Passing of comprehensive equality and anti-discrimination laws by states can enhance the quality of social justice.
The Racial Discrimination Act in Australia (1975), The Equality Act in the UK (2010) and the Civil Rights Act in the US (1964) are some illustrative instances.
Communalism can be resisted, not by a different version of it, but only by constitutionalism. The politics of hatred need to be checked by politics of love, inclusiveness, pluralism and compassion. One finds a great revolution taking place in Tamil Nadu in terms of governance, under the exemplary leadership of Chief Minister M K Stalin.
Many across the world appreciate it and anticipate better things to happen for the well-being of the public at large. To the progressive measures taken by the Tamil Nadu Government in recent times, a democratised version of an anti-discrimination law would be a fine supplement. Enacting such laws is imperative for all the other states, which are committed to constitutional governance.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com)
(Tweets @KaleeswaramR)