• Former West Indies captain Darren Sammy has alleged that he was subjected to racist comments during his stint with Sunrisers Hyderabad in the Indian Premier League match. 
  • In this background there is the need to analyze whether rights guaranteed under Article 15(2) of the Indian Constitution guards an individual only against state action or also against private actions. 

Discrimination and Constitutional protection in India:

  • In India, discrimination pervades every aspect of life in India, from access to basic goods, to education and employment. But, on other occasions, the discrimination is indirect and even unintended. 
  • Both direct and indirect forms of discrimination militate against India’s constitutional vision of equality. 
  • Article 15(2) stipulates that citizens shall not on grounds only of religion, race, caste, sex, or place of birth be denied access to shops, public restaurants, hotels and places of public entertainment. 
    • Sometimes, this right comes into conflict with the rights of persons to associate with others, often to the exclusion of certain groups. 

Judicial pronouncements:

  • The U.S. Supreme Court’s ruling in Griggs vs. Duke Power Co. (1971): The court held that an energy company had fallen foul of the U.S. Civil Rights Act of 1964 (made racial discrimination in private workplaces illegal) by insisting on a superfluous written test by applicants for its better entry-level jobs. 
    • Although this requirement was race-neutral, in practice it allowed the company to victimise African-Americans.
    • These practices are fair in form, but discriminatory in operation.
  • Madhu vs. Northern Railway(2018): The Delhi High Court applied judgement in Griggs, when denied free medical treatment to the wife and daughter of an employee which they would otherwise have been entitled to under the rules. 
    • The court held that to make essential benefits such as medical services subject to a declaration by an employee might be “facially neutral”, but it produced a disparate impact, particularly on women and children.
  • Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others(2005): The Supreme Court ruled in favour of a bye-law of a Parsi housing society that prohibited the sale of property to non-Parsis. This right to forbid such a sale, the Court ruled, was intrinsic in the Parsis’ fundamental right to associate with each other. 
    • However, the critics point out that the spirit of the Transformative Constitution, enshrined in Article 15(2) has been overlooked altogether in the judgement.
    • The word “shops” used in Article 15(2) meant to be read widely, as the Constituent Assembly’s debates shows us that the founders explicitly intended to place restrictions on any economic activity that sought to exclude specific groups. 
  • In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law which prohibits unfair discrimination not only by the government but also by private organisations and individuals.

Attempts at change:

  • In India, there have been a few efforts to this end in recent times. For instance, a private member’s bill in 2017, while the Centre for Law & Policy Research drafted and released an Equality Bill in 2019. 
  • In 2017, Maharashtra became the first state in India to introduce the Maharashtra Prohibition of People from Social Boycott Act, 2016, which prohibits social boycott of a person or a group of people by panchayats. 

Way ahead:

  • Any reasonable conception of justice requires to look beyond the intentions of our actions, and at the engrained structures of society. 
  • This does not mean that a statute will resolve systemic biases, and the nation will somehow magically transform into what B.R. Ambedkar envisioned. 
  • A rededication to our original constitutional commitment could be worthwhile for societal arrangements, especially when the nation is fighting the COVID-19 pandemic . 
  • Hence, the idea of enacting a anti-discrimination law that will help ameliorate the ways of life and  help reverse our deep-rooted culture of discrimination is needed.

The  civil liberties guaranteed by Indian Constitution are just as capable of being threatened by acts of private individuals as they are by the state. Therefore, rule of law must subsume an understanding that discrimination partakes different forms.