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Mansi Khandelwal

IWB Blogger

Shashi Tharoor To IWB: “I Don’t Believe The Government Has Any Place In Your Bedroom”

  • IWB Post
  •  March 22, 2017

 

Our constitution provides the fundamental rights and principles, covering the broad spectrum of the society, however, the strong legislation to ensure their implementation has been missing that made India vulnerable to the explicit violation of the basic human rights.

The absence of a strong legislative framework has what spurred incidents like the lynching of a Muslim man in Dadri to Karni Sena openly vandalizing the sets of Padmavati to the suicide of Rohith Vermula and more.

Thus, because of the growing atrocities on Dalits, LGBTQ+, Northeastern people, women, minority religious groups, the policy debate on an anti -discrimination law that has been going on for about a decade in India is finally seeing the light of the day.

Congress MP Shashi Tharoor introduced the anti-discrimination and equality bill in Lok Sabha on March 10. This bill was drafted in consultation with Tarunabh Khaitan, Associate Professor and Hackney Fellow in Law at Wadham College, Oxford University.

MP of Thiruvananthapuram, Tharoor have also taken up the fight against Section 377 of the Indian Penal Code (IPC), which criminalizes sexual intercourse “against the order of nature.”

The anti-discrimination bill can act as a catalyst for change in the regressive mindset of the society. Apart from addressing minority communities, the bill takes into account the challenges faced by the majorities as well, from the employer-employee relationship to the landlord-tenant issues.

In conversation with the man of the hour, Shashi Tharoor, we discussed the changes the bill will bring about.

Indian Women Blog: A conversation on antidiscrimination law began after the Sachar Committee recommended it in 2006, but unfortunately the idea didn’t work out. What political and social challenges do you predict the bill might face in the parliament?

Shashi Tharoor: The real challenge arises with the method in which private members’ bills are dealt with in Parliament. Figures from the Lok Sabha are not very encouraging: only 4% of all private member bills that have been submitted have actually been discussed. The rest lapsed without a single discussion. This trend has continued with the current Lok Sabha, and the status of private members’ bills has not improved. The objective of a private member’s bill has changed from being a prospective legislation to raising awareness on issues which require immediate action and legislation. I believe that though the anti-discriminatory law is in everybody’s interest, the actual performance of the bill and its ratification, or any discussion prompted from the bill, is dependent upon Parliament and whether it treats such a matter with the urgency it merits.

Indian Women Blog: The quota-based distribution of the social welfare is not a route to build the equal society, is it? Please comment.

Shashi Tharoor: Though quota-based distribution of social welfare is not the ideal path to an equal society, it is relevant and applicable in the Indian context. These quotas, or reservations, were created to help India move forward from its strict and rigid social stratification during the time of enactment of the Constitution. The original period was intended to be ten years; however, they were extended to 70 years. When the matter comes up for renewal in 2020, certain extensions are bound to be made.

These quotas were a small step towards compensating millions of people who suffered humiliation due to “untouchability” and other discriminatory practices based on their caste. Removal of such quotas can only be justified when equal opportunities are guaranteed, and in the present situation, there is a need to assimilate and include all of India’s society in its governance and functioning. Protecting the interests of disadvantaged groups must be our priority. While we work towards better solutions which will allow backward classes to maintain their unique identities in the Indian mainstream, we must also make space so that they do not get overwhelmed by the persistence of established patterns of discrimination.

Indian Women Blog: “A young woman has her movements restricted and monitored by her family because she is seen at a cinema hall in the company of a young man belonging to the same gotra as herself.”  Some illustrations in the bill touch upon the interpersonal relationships in one’s family that can be claimed as an individual family setting. How is the bill going to protect those silent victims who will never come forth to file a case against their family members?

Shashi Tharoor: This bill does not intend to intrude upon family dynamics. Interpersonal relationships are nonetheless subservient to the fundamental rights of an individual which are guaranteed by the Constitution. While we cannot give people the strength and courage required to move against the grain, we can certainly create provisions which will protect them if they choose to do so. There are certain forces within Indian society which are detrimental to the freedom of expression, speech, and movement of an individual, specifically women. These ideals have to be slowly morphed into a more equitable and fair method of thinking. We cannot enforce change in thought; it has to come about naturally.

Indian Women Blog: What is your vision to protect the bill from misusing by individuals?

Shashi Tharoor: Checks and balances should be imposed on each bill to ensure the minimization of misuse. It is difficult to completely curb the actions of those individuals who have a bad intent. However, the bodies that will oversee complaints and provide justice to the aggrieved will be constituted of former judicial persons who are well versed in the law and its applications. Also, these bodies, which will be quasi-judicial in nature, will follow the principles of natural justice. This will ensure that each party to the dispute is given a chance to be heard, and that rule of law prevails. If any individual feels that the law and justice have been impeded due to the vested interests of another, proper routes for appeals to higher courts and authorities will be provided. Care will be taken to ensure that the process of appeal does not further burden the aggrieved.

Indian Women Blog: What will constitute the training course for the members of the police force and other public servants as regards to sensitization about the execution of the bill in case of its implementation? 

Shashi Tharoor: This is indeed imperative, and we could learn from others on this too. For instance, when the British were trying to train their police force to function in a newly multi-cultural society, they made white police officers live in the homes of their minority counterparts (and of regular minority community members). This helped them assimilate and internalize different cultures and hence, become more sensitized to the needs, habits, and quirks, of communities different from theirs. The Indian context might not be the same, but we have to create a similar sensitivity and understanding between members of diverse communities. More formalized training can also be provided through Diversity Training and Sensitization. The guidelines for the courses will be provided by the Central Equality Commissions in consultation with members of other commissions such as the SC/ ST commissions, National Commission of Women, Commission for minorities and others. Individual departments will be better versed on issues regarding diversity and discrimination within their jurisdiction, and local involvement will allow further efficient dealings with ground realities.

Indian Women Blog: What support do you expect from the LGBTQ+, Women’s Rights groups to ensure the enactment of this bill?

Shashi Tharoor: LGBTQ, Women’s Rights, and Minority Rights groups are essential for the improvement and reformation of the existing legal structure. They have raised awareness and brought the attention of the public towards various lacunae in the law. Also, they have created social pressure which has forced the Government to take notice and action. As I have mentioned earlier, Private Members’ Bills are not the most powerful of legislative tools but work well to bring the attention of the Parliament towards important issues that require redressal. In this context, I expect such groups to help create awareness regarding the rights which need protection among the public and subsequently support bills and laws which promote such rights. These groups are integral for our country to move forward towards an equitable society.

Indian Women Blog: How does the bill reflect the provisions of Hindu and Muslim Laws, considering some of those provisions carry a discriminatory base?

Shashi Tharoor: We are witnessing a rise in disadvantaged groups who are challenging existing rules and customs which restrict their fundamental rights. While this bill, if enacted, will not override the provisions of any religion-based law, protecting archaic laws which are not coherent with the free and fair treatment of all individuals is wrong. Rather than protecting old customs, we should seek to improve them in a manner which is befitting the modern goal of a developed India. The Equality Commissions will also be entrusted with raising awareness and educating people regarding their rights and fostering an environment where people do not feel afraid to fight for their rights through legal routes.

Another point of the issue can be the applicability of this bill if provisions have been guaranteed by the Constitution. While the Constitution guarantees equality under Article 14, as well as Article 15, 16, and 17, the recourse provided is to approach the High Court or the Supreme Court. This can be intimidating to those who are not familiar with the complicated procedures involved in moving the higher courts. The financial cost of maintaining a suit in the High or Supreme Court further discourages those who have been wronged from pursuing their rights. The purpose of the law should not to just provide a remedy, but ensure that the remedy is accessible even to the most disadvantaged of individuals easily.

Indian Women Blog: Your message to Indian society to forego the homophobia?   

Shashi Tharoor: In a democracy, people should be free to be who they are. We should not be judging them, harassing them and giving the police an excuse to arrest them. 578 people have been arrested since the Supreme Court judgment in 2013, and, to my mind, 578 people are too many. I don’t believe the Government has any place in your bedroom. Equally, as long as people are not imposing their sexual preferences on you, why should you impose yours on them? Freedom means nothing if it does not include the freedom of other people to do things you wouldn’t do, or would even disapprove of, but which they are not imposing on you.

The Bill is about our fundamental rights and freedoms. Just because the Bill was shouted down in the Lok Sabha, doesn’t mean the conversation is over. We must never let this discussion die out, and it remains a challenge for liberal-minded Indians to take up. Thus, the struggle for human freedom embodied in our constitutional principles must continue.

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