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Research for an Indian Comprehensive Anti-Discrimination Statute

Status Update: Research for an Indian Comprehensive Anti-Discrimination Statute

Author: Garry D. Harlieb

Garry Hartlieb from the United States of America, joins ALF an intern for the summer of 2015. He graduated from Michigan State University with two B.A.s, and obtained his J.D. from the University of Michigan Law School. At ALF his research has concentrated on anti-discrimination laws, net neutrality, freedom of speech, and competition law. Prior to joining ALF he was published for his research pertaining to arbitration and shareholder rights.

Since arriving at the Alternative Law Forum nearly a month ago, my research efforts have focused primarily on how India might approach unifying existing laws that provide redress for marginalized groups.  As is the case in most countries around the world, the Indian legislative and judicial regimes that provide for redress of marginalized groups are an amalgamation of discrete policies that are narrowly tailored for particular affected groups. The fragmented nature of these frameworks becomes an issue if and when an individual is a member of more than one “protected class” and it is not clear what rights someone in that situation should possess, a conundrum referred to as “intersectionality.”

Nevertheless, certain shared questions recur in each individual statue: how to identify an affected individual as a member of a particular group, how to shape the contours of anti-discrimination in particular situations, how to provide redress to the affected group (whether positive discrimination or affirmative action is in order), and to whom the anti-discrimination rules should apply (public and/or private actors).

The bulk of the existing research conducted to date has sought to address the theoretical and pragmatic concerns that underlie the choice about the medium through which anti-discrimination standards may come into effect – a constitutional amendment, judicial order, administrative or agency action, or the recommended option of a new statute. Research has also concerned the nature of the text – a principles-based or explicit rules approach – and the affected communities who ought to be covered.

Several countries have taken steps to try to address fragmentation concerns by drafting comprehensive anti-discrimination statutes. Chiefly among these laws are the United Kingdom’s Equality Act of 2010 and Section 9 of the Republic of South Africa’s Constitution. While the United States of America has the Civil Rights Act of 1964, it still does not have a single source for all anti-discrimination principles, which instead can be found in separate legislation and in the Constitution of the United States of America. Consequently, U.S. laws are useful in answering questions about what should constitute a protected class and for assessing when positive discrimination should apply. Additional research will seek to incorporate the experience of South American nations that use the common law.

How then would this comparative research influence a legislative solution for India? Every nation comes from a unique historical perspective; there is not one shared historical starting point. There is also not a single “right” way to approach anti-discrimination law around the world. Still it is possible to imagine how to incorporate the principles and methods from other nations may work in harmony with India’s legislative and precedential foundation. First, India has several laws that establish anti-discrimination laws for particular groups of individuals. These laws include the Protection of Civil Rights Act of 1955, the subsequent Prevention of Atrocities Act of 1989, and the recent Rights of Transgender Persons Bill of 2015, among many others. Second, India has particular remedies in place to enforce anti-discrimination principles. For example, through the Reservation Policy, members of the Scheduled Classes may be afforded access to certain government jobs and have admission seats reserved at academic institutions. But gaps in the current legislative schemes, such as the exclusion of Christian and Muslims from the Reservation Policy, persist. A comprehensive legislative statute would obtain several key results: (1) it would provide a central authoritative source for the multitude of civil rights programs; (2) it would fill in the gaps that leave those on the margins of qualifying or those who face special problems as a result of intersectionality unprotected; (3) it would make it easier for individuals to understand when and how they are protected; and (4) it would yield gains in judicial economy by making it easier for judges and advocates to piece together a complex and sometimes inconsistent regulatory backdrop.

To be clear, this is a statute that must start by compiling all of the provisions from India’s Constitution as well as its existing civil rights laws. As this work continues, Danish Sheikh will be providing an in-depth analysis of the existing judicial and legislative landscape in India. Only once that material is aggregated would it be appropriate to look abroad for the purpose of ascertaining what that collection of laws is missing. Danish and I will have dialogues about what protections I’ve seen other countries afford to help discover where those gaps might exist. It would be wrong and ineffective to simply supplant a framework from another nation to replace India’s existing civil rights laws, and doing so would risk undoing the protections that existing laws provide. For example, the Fourteenth Amendment of the United States Constitution is the source text that underlies many of the anti-discrimination jurisprudence that applies to the several states in the U.S. But that Amendment along with the Thirteenth and Fifteenth Amendments, the “Reconstruction Amendments,” were only a reaction to a changing political landscape that sought to remedy a history of discrimination that resulted from the period of slavery in the U.S. Arguably, jurisprudence would have been cleaner and more administrable had the Bill of Rights or the initial Constitution been revised to reflect the new goals. The point of this example is not to say that the U.S. civil rights regime is or is not functioning well, but rather to say that many nations with longer histories have necessarily had to adopt a more fragmented or ad-hoc approach as time has progressed. Given India’s comparatively short life as an independent nation and combined with its already lengthy and frequently amended Constitution, it has the opportunity and ability to think through how to get a multitude of issues right in a clear and comprehensive manner.

Stay tuned for more updates on this comparative law research from Danish and me.