Analysing the draft Elimination of Discrimination Act

The recognition of the principle of equality and non-discrimination along with human dignity and social justice has been recognised under the Constitution of Bangladesh. Article 27 of the Constitution guarantees 'equality before law' and 'equal protection of law' while article 28 prohibits any differential treatment only on the grounds of race, caste, religion, sex or place of birth. Despite these constitutional guarantees, the manifestations of political, economic and social discriminations are rampant particularly against marginalised communities of Bangladesh. Given the backdrop, the Law commission of Bangladesh has recommended the government to formulate a law for preventing discrimination and accordingly they prepared a draft Elimination of Discrimination Act in 2014. Different rights bodies, the National Human Rights Commission (NHRC) Bangladesh, representatives of the underprivileged communities have expressed their views and comments on the Draft Act on different occasions. Currently, this piece of law is under review by the Law Ministry.

The definition under the draft Act is wide and exhaustive, and encompasses both direct and indirect discrimination. It includes discrimination against any individual and community also. The grounds for discrimination among others include religion, faith, community, race, caste, custom, culture, occupation, ethnic originality, gender (including transgender) sexual orientation, disability, pregnancy, marital status, birth place, etc.

The draft Act provides an exhaustive list of discriminatory acts which will be considered as punishable offence. The discriminatory acts include, among others, deprivation from public service, creating obstacles in celebrating festivals of respective communities, prohibiting any individual or community in accepting an occupation or conducting business, compelling any individual to perform a particular occupation, imposing stringent conditions while renting house, forcing any individual or community to perform or not to perform any particular religion, etc.

The principle of non-discrimination has been developed from the jurisprudence of international human rights law. The concerning point here is that if discriminatory acts are treated as crime, then the principle of non-discrimination comes within the premise of penal law which is significantly different from the idea of human rights law. In addition, the draft law also criminalises personal matters (marriage related discrimination) and civil matters which might create contradiction with personal laws and civil laws of the land. In India, under the Anti-discrimination and Equality Bill 2016, all sorts of discrimination create civil liability.

Regarding the forum of complaint and investigation, the Law Commission suggests that any victim of discrimination or any person on their behalf can lodge a written complaint with the NHRC or with the Court. A discrimination offences investigation cell would be created under the NHRC which shall conduct the investigation proceedings. However, this provision has been revised by the Law Ministry where the investigation power of the NHRC has been taken away. Under the revised provision, a victim can file a FIR to the police station or can file a complaint to the Court of Magistrate. If the police station refuses to take FIR or fails to take action under applicable law, then the victim can file a complaint to the NHRC. In a way, the revised provision goes back to the traditional form of investigation and court proceedings.

The NHRC should be given the power of investigation so that we can avoid being trapped into our traditional investigation method and justice delivery system which often fail to ensure justice due to case backlog, lengthy trial, faulty and corruptive investigation by police, low conviction of criminal cases. Vesting the power of investigation in the hands of police officials might hamper an effective investigation and smooth trial proceeding. The Indian anti-discrimination law suggests for an Equality Commission to inquire into any matter or issue and have the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908.

The draft law provides a separate chapter of punishment for the commission of discriminatory acts. A careful reading reveals that punishment for the discriminatory acts is disproportionate and excessive. For example, for creating obstacles in getting inheritance property rights, punishment is up to ten years imprisonment or ten lac taka fine or both; while for creating obstacles in getting public service, punishment is up to two years imprisonment or fifty thousand taka fine or both. Here it is to be noted that if the degree of punishment becomes disproportionate and excessive in comparison with the degree of discriminatory acts, then it might create a new form of discrimination. In this regard, the Indian law suggests for different types of civil liability including boycott, segregation, and exemplary damages and in case of aggravated forms of discrimination and violation of protection order, the punishment would be one year imprisonment or with fine which may extent up to the annual salary of the President of India.

The draft law suggests that the government may set up an anti-discrimination court headed by a District and Sessions Judge in every district to try such cases. The court will have to complete a trial in 60 working days after the framing of charges. However, the revised draft law excluded the provision of anti-discrimination court and suggests for conducting trial under existing court structure in accordance with the Code of Criminal Procedure (CrPC).

The nature of the draft law is found to be preventive not protective. The draft law only provides preventive measures against discrimination and does not provide any protective measures for the victims of discrimination. Under the Indian law, there is a provision for protective order under which the court may ask to refrain from committing or encouraging others to commit any acts prohibited under this Act.

It is undeniable that the aim of this time befitting law is to prevent discrimination particularly against marginalised communities and such type of law would be a milestone for legal protection against all sorts of discrimination in Bangladesh. However, considering the above-mentioned issues, this draft law needs to be revisited before its enactment.

The writer is a Lecturer, Department of Law, University of Dhaka.