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Adversarial litigation may not be effective in fighting discrimination

Talha-Abdul-Rahman(With an anti-discrimination legislation back on the political agenda, Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has responded with a draft Equality Bill, 2016. myLaw.net has invited some scholars and advocates to comment on this draft and over the coming weeks, will publish their responses here. The second response is from Talha Abdul Rahman, a Delhi-based advocate. Among other things, he has observed that the traditional adversarial system may significantly limit the effectiveness of litigation under the proposed law.)

In the Constitutional scheme and specifically within the ‘equality framework’, it is possible to locate the rights for every kind of minority or a discriminated class of persons through interpretation. The protection accorded to one class of minority has the potential to become a basis for the protection for another class of minority. Having said that, as exemplified by the partially dissenting opinion of Justice Ruma Pal in the T.M.A. Pai Foundation Case, identifying ‘minority’ in the Indian scenario is not free from legal difficulty. This is in addition to the fact that the Constitution itself promises equality for all (which manifests differently for different classes of persons). In this backdrop, Tarunabh Khaitan’s Equality Bill 2016 (“Bill”), emphasises two key principles: one, that it is important to ensure inter se protection to various categories of minorities (which he defines by referring to ‘Protected Characteristics’) as much as it important to protect the minority from any affront at the hands of the majority, and second, that it is equally important to afford protection of law even to a member of the majority who is need of protection. These two principles, in my view, form the core of the Bill as they recognise the locational vulnerability of an individual at a given time and place. In this piece, I have focussed on provisions dealing with enforcement of the rights and duties under the Bill.

The administration of the provisions of the Equality Bill rests on the shoulders of the Central and State Equality Commissions and the Equality Courts. Broadly, the functioning of Equality Commissions (“EC”) under Section 23 of the Bill are comparable to the functioning of the National Human Rights Commission and other such commissions. For instance, the EC have been entrusted with the power to “investigate complaints with regard to the breach of the diversification duty, monitor enforcement of this Act, review the functioning of this Act and make recommendations for its improvement from time to time, approach any court for the enforcement of this Act, and support aggrieved person seeking legal remedies provided under this Act”. It appears to me that the jurisdiction of EC, even though comparable with other commissions (such as National Commission for Women), is widely and more exhaustively defined.

The adversarial system has limitations

Further, the Equality Courts, in terms of Section 25 of the Bill are ordinary district courts which are to be designated by the State Government as an Equality Court. I anticipate two issues from this approach. First, resort to a full adversarial system for rendering justice to ‘persons aggrieved’ of discrimination and abuse who could be on the fringes of the society is not really the best approach. This is because the adversarial system is heavily loaded with costs, delays, and procedural impediments, and its success largely depends on a prosecution of the claim by the aggrieved person. The issue of discrimination and equality is too serious to be left upon the ability or capability of the aggrieved person, especially because the society as a whole stands to benefit from a successful prosecution. It is relevant that notwithstanding the protection against victimisation under the Bill, an aggrieved person may not be able to fully prosecute the claim for a range of reasons. Therefore, at least under this Bill, a partly inquisitorial system could be adopted. Naturally, such a system would also have to provide for adherence to the principles of natural justice and must also be tweaked to suit our specific Constitutional requirements. Regard may be had to ‘protection officers’ under the Protection of Women from Domestic Violence Act, 2005. Truth stands a better chance of being found in an inquisitorial system if administered by competent persons than when it is left at the mercy of a person who may not be able to match up to the legal might of the oppressor.

The problematic prioritisation of equality claims

Second, the approach to utilise an overburdened court system for full blown litigation is far from desirable. This is because the matter would still have to be adjudicated by (a) existing courts and (b) existing judges who may not necessarily have requisite training in diversity. Further, the obligation upon the State Government to direct the courts to first dispose of equality claims (when in excess of fifty) under the Bill and to give them priority over all pending cases is legally improper. There does not exist sufficient legal justification to accord to equality claims such priority in adjudication to the exclusion of all other cases. The success of an inquisitorial system would also depend on the predilection, quality, and capability of the persons presiding over or assisting the Equality Courts. It is relevant that Section 27 ‘dilutes’ the jurisdiction of the Equality Court by providing that “reliefs available under this Act may also be sought in any legal proceeding before any court affecting the parties to such proceedings, in addition to any other relief that may be sought in such proceedings”. Further, the provisions dealing with the jurisdiction of the High Court, apart from creating a right to appeal, appears to be superfluous as they do nothing more than restate the settled position of law.

Part G of the Bill contemplates the passing of “protection orders” upon an application of the aggrieved persons, by the court of Judicial Magistrate (First Class) or the Metropolitan Magistrate. It is specifically provided in that Part, that “the fact that the case could be pursued, is being pursued, or has been pursued, in civil proceedings before an Equality Court or the High Court shall not be a ground for refusing to issue a protection order.” The reasons for this multiplicity of fora (in addition to overlooking res-judicata) is not entirely clear.

More power to the district courts

Further, as District Court does not have the power to punish for its contempt, they could be so empowered in respect of orders passed under this proposed legislation. It also appears that the prohibition that “the Equality Court shall refuse to take cognizance of any breach that is alleged to have been occasioned by a speech, expression or communication that is prima facie protected under Article 19 of the Constitution” could defeat the working of this Bill. It is one thing to recognise the defence of freedoms under Article 19 being available, and another to bar cognizance of cases.

In summation, enforcement provisions, including those dealing with the creation or conferral of jurisdiction need a re-look. The administration of rights and obligations created under this Bill rests upon the Commission and the Courts. Therefore, the provisions enabling access to courts and their conduct and powers, need to be based on experience in addition to logic.

Talha Abdul Rahman is a Delhi-based advocate.

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