Anti-Discrimination/Sex Equality

Constitutional Background

The Indian guarantees equality as ‘Fundamental Rights’ in Articles 14, 15 and 16 under Part III. Article 14 guarantees equality before law and the equal protection of laws. Article 15 prohibits discrimination ‘only’ on the basis of religion, race, caste, sex, place of birth, or any of them. Article 15 also allows for special provisions to be made for , children, socially and educationally backward classes of citizens as well as the Schedule Castes and the Scheduled Tribes (SCs and STs) – such special provisions shall not be considered discriminatory. Article 16 provides for equality of opportunity in matters of public employment. It also allows the state to make reservations in favour of the SC, ST and Other Backward Classes. While the does not specifically mention reservation for women, the Constitutional (74thAmendment) Act, 1992, brought in provisions mandating one-third reservations for women in local governance bodies. These guarantees apply to state and public institutions. The only provision that binds both the public and the private sector is Article 17 which outlaws untouchabilityand forbids its practice in any form.

Part IV of the Indian Constitution enlists socio-economic and cultural rights under the title of ‘Directive Principles of State Policies’ (DPSP). While the DPSP, unlike the fundamental rights, are not enforceable, these rights are meant to guide the state while legislating and policy making.

The Supreme Court and the High Courts under Article 32 and 226 respectively, have the power to enforce constitutional guarantees of fundamental rights. This Right to Constitutional Remedies is itself a fundamental right.

For the enforcement of fundamental rights, the Supreme Court has expanded the locus standiwhich has resulted in ‘public interest litigation’ on behalf of socially deprived categories. The expansion of locus standi was justified by Justice Bhagwati in S. P. Gupta v. President of & Others1as follows:

It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.”2

Status of Women in India

Against this scenario, it would appear that women are guaranteed equality, equal protection of laws, equality of status and opportunity, thus redeeming the preambulatory promise of Justice: social, economic and political. The mainstream Indian society continues to fall short in the realization of full equality for the marginalized groups, particularly women. According to 2001 census report, the sex ratio stands at 933 females per 1000 males.3Out of the total population, 120 million are women who live in abject poverty. The maternal mortality rate in rural areas is among the highest in the world. India accounts for 19% of all live births and 27% of all maternal deaths. The post neonatal mortality rate (number of deaths of children age 1-11 months per 1000 live births) for females is 21, compared with only 15 for boys.4The total female labor force participation rate is estimated to be only 28% in 2008, and this data does not take into account the hours spent by women on household activities.5In urban areas, female labor force participation rate is estimated to be at only 7.8% in 2005-06.6Only 36% of the female populations in the age group 15-64 years are participating in the labor force.7These statistics present a dismal picture of women’s lives across both, public as well as private spheres. Even when women engage in paid work, their daily income is only 53 paisa per rupee earned by men in rural areas and 68 paisa in urban areas. Women’s economic vulnerability is compounded by their social vulnerability.8

Existing Legislative Framework

There is no comprehensive anti-discrimination code in India although there are laws that address specific aspects related to equality. For instance, laws like the Maternity Benefits Act, 1961, Equal Remuneration Act, 1976 and the National Rural Employment Guarantee Act, 2005 attempt to address the existent systemic discrimination towards women in employment. Based on the guarantee of equality, laws have been enacted to address violence against women under civil and criminal laws. The Protection of Violence Act, 2005 is an example of the civil law to address violence within the home. On the other hand, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is an example of criminal law to counter acts of violence against SC/ST women. In the absence of an anti-discrimination code, there is no comprehensive statutory definition of discrimination that takes into account different manifestations of discrimination and its impact.

Other than mechanisms provided under these laws, India has instituted statutory commissions to protect human rights such as the National Human Rights Commission and the National Commission for Women. These commissions have been vested with the function of inter aliamonitoring and reviewing state action and making recommendations for better enforcement of human rights and women’s rights. However, theyhave their limitations. Their recommendations are not binding upon the government and they have no power to redress individual grievances and grant relief.

Proposed Law

The Sachar Committee Report in 2006 first put forth the idea of setting up a new legal framework for tackling grievances of the minority population. Following up on that, the Menon Committee Report in 2008 proposed a new framework in the form of Equal Opportunity Commission (EOC). The EOC has been visualized as one with extensive authority to investigate, gather data, conduct audits, advocate and render advice. However, the proposed legislation does not visualize an authority which can redress grievances and grant relief to individuals and/or groups. Amongst other things, the consultation will look at this proposed legal framework in a critical light.

To secure the constitutional promise of equality and achieve full equality of opportunity for vulnerable groups, particularly women, India needs an equality legislation that protects multiple characteristics, extends beyond the private and public divide and addresses manifest discrimination in society. Thus, a consultation titled ‘Towards an Anti-Discrimination Law in India’ was organized on December 11-12, 2010 at India Habitat Center, New Delhi to deliberate and brainstorm over the need for an anti-discrimination legislation whose objectives and framework respond to the need of the hour.

1AIR 1982 SC 149

2Ibid; para 17.

4Data Source: National Family Health Survey 2005-2006

5Data Source: World Bank Database (http://data.worldbank.org/data-catalog)

6Data Source: NSSO Estimate 2005-2006

7Ibid. 3

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