In India ‘right to discriminate’ seen as a “private entitlement”

Isn’t Indian society inherently discriminatory? Dr Tarunabh Khaitan, an Associate Professor in Law at Wadham College, Oxford, laments the fact that India is among the few democratic countries which still does not have an anti-discrimination law. The author of A Theory of Discrimination Law (OUP 2015) and General Editor of the forthcoming Indian Law Review, Khaitan is cautiously optimistic. He is more forthcoming on his collaboration with Congress MP Shashi Tharoor in drafting the anti-discrimination Bill.

"As an academic, I value my intellectual independence far too much to align too closely with any one party or politician. For example, while I am grateful to Dr Tharoor for championing this Bill, I disagree with his view that we should scrap parliamentary democracy and adopt a presidential system. A democracy must provide space for such differences of opinion. But it is also important for civil society to engage with well-meaning and committed politicians (there are quite a few of them!), instead of parroting the lazy cliche that 'they are all corrupt'." Khaitan responded to questions mailed to him by the National Herald. Excerpts from the interview:

Discrimination in India is endemic and to many it appears to be on the rise. While researching the subject, what has been your experience?

I believe that almost everyone in India has been a victim of some sort of discrimination, and almost everyone has also been a perpetrator.

The value of a comprehensive, multi-ground, antidiscrimination Bill like the one Dr Tharoor has introduced lies in its ability to challenge our inconsistent (and sometimes hypocritical) attitudes to discrimination. It shows us that the primary wrong behind being denied a job because you are a Dalit or a house because you are Muslim, harassed for being a woman, unable to use public transport because of the absence of accommodation for the disabled, is the same.

We cannot pick and choose the discrimination we want to end and those we wish to continue. We must all confront our own prejudices and assumptions. That is why this Bill seeks to protect not only minorities and disadvantaged groups of all shades, but also minorities as well as majorities (with exceptions for affirmative action). Also, everyone is forbidden from discriminating, irrespective of whether you are a minority or a majority group member.

Have you had the opportunity to discuss this Bill with political parties? What has been their reaction?

I haven't formally discussed the Bill with the leadership of any party. I do not have any party affiliations, and have focussed on discussions with individual members from across a range of political parties. Most politicians I spoke with were interested, everyone—without exception—admitted that discrimination was a huge problem in India.

There was some early enthusiasm on the part of the Delhi Government to pass a state anti-discrimination Bill. I hope that is still on the agenda of not just Delhi, but other states too. Dr Tharoor came across as one of the most enthusiastic and committed politicians on this issue, who really understood the vision behind the bill, so I decided to work with him. I have no doubt there are others who share this vision in all parties.

You may have contacted the NDA Government or the RSS or think tanks like the India Foundation. Have they evinced any interest?

I don't believe anti-discrimination law should be seen as a party-political issue. There is broad acknowledgement across our political establishment that discrimination exists, and is serious. Let us take that as a starting point.

The Right has long complained that the Left is selective about the victims it seeks to protect. Whatever may be the truth of that allegation, here is one Bill that is genuinely universalist in its aspiration, that seeks to make attributes like religion and caste truly irrelevant to public life (by eroding their nexus with discrimination over time), one that forbids sex discrimination in all communities.

The NDA Government should welcome the Bill and adopt it as an official government Bill, and start serious public consultation through a parliamentary committee. This will also demonstrate that the Prime Minister's words expressing deep distress after Rohith Vemula's death can be matched by action.

A Private Member's Bill obviously has little or no chance of getting passed. So presenting the Bill is of academic interest perhaps? Do you expect the Bill to gather any momentum?

I know from my interactions that the Indian political class is worried about discrimination. The passage of the transgender rights bill in the Rajya Sabha—which was also a private member's bill—suggests that individual legislators can sometimes make a difference. Of course, it will be a lot better for political parties and governments (at the centre and the states) to take ownership of the issue and shepherd a law. Momentum can be built if some states start legislating on the issue—remember, the Right to Information law was first enacted by several states before the central legislation came about.

Finally, do you think India is ready for a Bill of this kind? Do you think India can no longer wait?

India remains an outlier amongst liberal democracies for not having a comprehensive anti-discrimination law, where we still see the 'right' to discriminate’ as a private entitlement. This law is long overdue. The experience from South Africa in particular can be instructive—one of the lessons from there is that even a good law will need strong grassroot organisations and civil society to ensure adequate implementation.

Also see ‘15 examples of discrimination in India’