Soli Loquies

Violation of human rights by discrimination is pervasive. It occurs in every society, in various forms. In essence...

Discrimination: Violation of human rights by discrimination is pervasive. It occurs in every society, in various forms. In essence, discrimination is exclusion, restriction or preference on grounds such as race, religion, caste, descent, ethnic origin, sex and colour which has the effect of impairing the exercise or enjoyment by any person of his or her fundamental rights on an equal footing.

Discrimination cannot be justified on the ground that the legislation or the measure in question did not intend to discriminate. Courts in India and other countries have ruled that it is not the intent that matters but the effect of the measure which is material. For example the United States Supreme Court held that discrimination took place where the employment practice of a company, which prescribed certain academic qualifications, in effect excluded blacks, even though the employers had no intention to discriminate.

Discrimination can occur in a subtle manner. It need not be direct and overt in all cases such as discrimination against persons admittedly because of their gender, race or religion. It can also be indirect and covert. Indirect discrimination takes place where a requirement or a condition is laid down which has a disproportionate effect in that it is more difficult, in practice, for the applicant to comply with the requirement. For example, by prescribing conditions which apparently are gender neutral but which women are less likely to meet than men, and which thereby exclude women from opportunities for employment. Incidentally males can also be the victims of discrimination. Their total exclusion from the nursing profession would be irrational and discriminatory.

No doubt equals be treated equally. That is the mandate of equality. However discrimination can result when unequals are treated equally. For example: if a person earning Rs 10,000 per month is taxed at the same rate as a person earning Rs 10 lakh a year. That would be a case of subtle injustice because in the picturesque language of Justice Krishna Iyer 8216;8216;bare equality of treatment regardless of realities is neither justice nor homage to constitutional principle8217;8217;.

Infinite variety of judges: Much has been written about judges, their judicial qualities and expected performance. Lord Denning summed up the matter in his inimitable style: 8216;8216;I would say that judges are infinitely various. Some are wise, some not. Some are learned, some not. Some are talkative, some say little. Some interrupt, some do not. Some work hard, some are lazy. Some write judgments that are over-long, some are too brief. Some agree and have nothing to add, some dissent.8217;8217; Denning points out that the Bar assesses each one of the judges, 8216;8216;but their assessment is fickle to a degree. If a judge decides in their favour, he is a good judge. If against them, he is a bad judge or he has an off day.8217;8217; How true! The tendency to badmouth judges who have rejected the dogmatic submissions of over-confident counsel and dismissed their case is reprehensible. Litigants may be pardoned for this crassness but not senior lawyers who should know better and not behave like bad losers.

Simple language: Clarity and simplicity in language are essential, be it a speech, a lecture or a parliamentary debate, or the judgment of a court. Former chief justice of England and Wales Lord Woolf made a determined effort to cleanse the court language from sonorous, unintelligible Latin maxims and expressions and emphasised the need for plain intelligible English. Prime Minister Junichiro Koizumi of Japan recently made a similar plea. A question in Japan8217;s parliament peppered with English financial terms provoked Prime Minister Koizumi to ask the questioner: 8216;8216;Who understands words like compliance and governance? Use words that ordinary people can understand.8217;8217; He was loudly cheered. He went on to say, 8216;8216;some members know English, I have studied a bit, but debates shouldn8217;t be limited to those who understand English. Debats are for everyone.8217;8217; These words will be sweet music to the 8216;Angrezi Hatao8217; tribe. Mulayam Singhji may well give an award to the Japanese Prime Minister by enacting a special legislation, in Hindi of course.