The Case for a Single Anti-Discrimination Statute

In one line

India protects groups one at a time by a separate statute for each, and a single anti-discrimination statute listing prohibited grounds, with a general duty of reasonable accommodation and a single forum, would answer four of the seven gaps identified in [What Is Still Missing] simultaneously.

The present model, and its four consequences

India's model is a statute per group. 1976 for bonded labourers, 1986 for child labour, 1989 for the Scheduled Castes and Scheduled Tribes, 1990 for women, 1992 for minorities, 2005 for children, 2006 for forest dwellers, 2007 for senior citizens, 2008 for unorganised workers, 2016 for persons with disabilities, 2017 for people living with HIV, 2019 for transgender persons.

That is twelve statutes, nine commissions, and no general law of discrimination.

Four consequences.

A person in two groups has no forum. Each commission's jurisdiction is its own group, no statute permits a joint reference, and a complaint about an intersection is split or falls between them.

A group not yet named has no protection. Stateless persons, the internally displaced and, before 2019, transgender persons had no statute, and until a statute is passed the only remedy is the Constitution.

A new form of disadvantage requires a new Act. Digital exclusion, climate displacement and discrimination on the basis of a genetic condition each require Parliament to act before anything happens.

And the private sector escapes by default. Article 12 confines Part III mostly to the State, and each statute must decide separately whether to bind private parties. Some do and most do not, so whether a person is protected against a private employer depends on which group they belong to, which is arbitrary.

What the alternative looks like

A single statute with six components.

One: a list of prohibited grounds, not a list of groups. Race, caste, descent, sex, gender identity, sexual orientation, religion, place of birth, language, disability, age, health status, marital status, pregnancy, and any analogous ground.

The difference between a ground and a group is the whole point. A group is a class of persons the statute names and must keep naming. A ground is a basis on which a decision may not be taken, and it protects anybody disadvantaged on that basis including the member of the majority, the person in two categories, and the person whose category has no name yet.

Two: a definition of discrimination in the terms Indian law already uses. Any distinction, exclusion or restriction on a prohibited ground having the purpose or effect of impairing or nullifying enjoyment of rights on an equal basis with others, including the denial of reasonable accommodation. That is section 2 of the 2016 Act.