Beyond binary discrimination: wading our way through the pool of equality jurisprudence
by Sayalee S. Surjuse
International Journal of Public Law and Policy (IJPLAP), Vol. 8, No. 2, 2022

Abstract: From grappling with the concerns of equality between the binary genders to achieving equality for the transgenders¹, India has trodden this path and how! She marches ahead by heralding a new era for recognition of rights of the LGBTQ+ community in the judgment of Navtej Singh Johar.² However, this credit goes to the undemocratic-branch of Judiciary and not to the branch which is the real democratic reflection of the aspirations of people. Yet, lately, we have witnessed different hues of bigotry in society. The issue of discrimination is not limited to sexual minorities, but is all-pervading on the food choices of an individual, beliefs, pregnancy, and disability, etc. The plight of an individual can be fathomed by the fact that the Judiciary also had to battle the competing notions of public morality and constitutional morality in cases of Navtej Singh Johar³ and Naz Foundation.⁴ Unarguably, there are progressive anti-discriminatory laws like the Rights of Persons with Disabilities Act, 2016, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 amongst others. However, discrimination based on sexual identity, sexual orientation, marital status, food preferences, etc. escapes the clutches of these laws. The drafts of Anti-discrimination and Equality Bill, 2016 and 2019 are a step in the right direction, however, ways to reconcile the competing rights of the individual remains a point of concern.

Online publication date: Fri, 08-Apr-2022

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