With Berlin passing the first anti-discriminatory legislation in the country, it is a moment of deep contemplation for Indian law-makers to take requisite steps in a similar direction. The anti-discriminatory law in Berlin prohibits public authorities and police officials to discriminate on the basis of race, religion, gender, skin colour, age and worldview. The need for a legislation along similar lines becomes all the more relevant in the Indian context where discriminatory practices and biased outlooks of the police is rife.

A significant aspect of the Berlin legislation is the shift in the burden of proof in cases of discrimination by public officials. It takes into account the factor of a case of discrimination being “predominately likely”. It means that if prima facie the alleged actions appear to be likely, the burden of accepting or refuting the accusation rests with the official. In India, several instances of human rights violation and discriminatory practices by public authorities go unreported due to this lacuna unfilled by specific legislation addressing the same. Thus, a law of such nature is crucial in the Indian context as most instances of discrimination are faced by Dalits, Tribals and Muslims.

The Status of Policing in India Report 2019, underscored the police prejudice against the minorities and also the consequential resentment among the minorities against law-enforcing authorities. In the aforementioned survey, when the question was posed, regarding suspected groups highly likely of committing crimes, the most common answers by police officials were ‘migrants’, ‘Muslims’ and ‘Dalits’ (24%, 14%, 7% respectively), thereby representing the most vulnerable sections of Indian society. Compared to this, only 6% upper-caste Hindus were branded as likely of breaking the law. The report also made outrageous revelations as the survey concluded that almost 50% of police officials considered Muslims to be crime-prone. Consequentially, it has led to a cause of distrust in police among minorities. As per the 2018 edition of the same report, the most distrustful groups were Sikhs, Scheduled Tribes and Muslims. Furthermore, provisions in the Indian legislation defining “habitual offenders” have been incessantly misused and have been applied inordinately in cases of minorities. Data from the NCRB’s (National Crime Records Bureau) report on prisons show that majority of  undertrial prisoners belong to the Dalit, tribal or Muslim communities. It is unsettling that these communities collectively constitute less than 40% of the Indian population and the only facet of Indian governance where their representation surpasses the bare minimum is prisons.

The existing statutes contain gaping holes and lack the imperative comprehensibility. Most anti-discriminatory legislations are incapable of dealing with the intersectional nature of discrimination and are mainly penal statutes. This essentially means such statutes are to be construed ‘strictly’, leaving minimal ambit of interpretation, and thus minimising the grounds (like indirect discrimination) that can be covered. In 2018, the case of Madhu v. Northern Railways highlighted “indirect discrimination” by public authorities. Indian Railways deprived the wife and daughter of an employee, the right to medical benefits and other perks since the employee had abandoned them and removed their names from the medical card. The rights were later conferred on the family by the High Court which considered the actions of the Railways authority to be discriminatory, although it was a mere strict interpretation of rules. It is such innumerable instances that makes it so imperative to have a specific anti-discriminatory legislation that can effectively be used to subvert such interpretations and implementations, detrimental to the marginalized communities.

The notions of caste and religion entrenched in the police system and the socio-economic polarity prevailing in the country lead to innumerable instances of police discrimination. Article 14 and 15 of the Indian constitution guarantees equality and prohibits discrimination of any kind respectively but lacks the existence of a holistic legislation that can address this pressing issue. Apart from the basic constitutional directives of equality and non-discrimination, there exist specific equality legislations in major democracies of the world. The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, the United States Justice for Victims of Lynching Act, 2018, The UK Equality Act of 2010, etc. The recent times have seen the staunchest of movements against discrimination and it is high time for Indian lawmakers to introduce a comprehensive legislation addressing discrimination by public authorities.

ABOUT THE AUTHOR

Harsh Pati Tripathi

Harsh is a second-year law student at NALSAR University of Law, Hyderabad. He is an Editor of the Tech Law Forum Blog. He has an avid interest in Constitutional Law, Human Rights, Public Policy and Technology Law. He can be reached at harsh.trip25@gmail.com.