Understand Discrimination Before Acting Against

by Fayazuddin Ahmad

All ‘are entitled to equal protection against any discrimination’ (Article 7), established by the Universal Declaration of Human Rights in 1948. The International Convention on the Elimination of All Forms of Racial Discrimination, in 1965, defined in Article 1(1), racial discrimination as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.’

From the 1970s onward, by Hana Shepherd and Devah Pager, the terms ‘institutional’, ‘structural’, or ‘systemic’ discrimination became widely used in sociological literature to designate ‘the range of policies and practices that contribute to the systematic disadvantage of members of certain groups.’ The notion that discrimination, under US laws, is not necessarily intentional and may have a systemic dimension also made its way in the legal field, leading to an enlargement of the legal understanding of the concept. Certain provisions, Sheldon Stryker identified, on discrimination, prohibit not only intentional, explicit, discriminatory treatment but also decisions and policies that are neutral in appearance in the sense that they are discriminatory in their effects insofar as they have a disproportionate adverse impact on one specific group. 

The so-called ‘Race Directive’, adopted in 2000 by the European Union, to combat racial and ethnic discrimination, defines the notion of ‘indirect discrimination’ as occurring ‘where a neutral provision, criterion or practice would put persons of a specific group at a particular disadvantage compared with other persons, unless a legitimate aim objectively justifies that provision, criterion or practice and the means of achieving that aim are appropriate and necessary.’ ‘Direct discrimination’, by contrast, is when ‘one person is treated less favourably than another is, has been or would be treated in a comparable situation.

Systemic discrimination, as construed by Canadian Courts, results from a pattern of behaviours, policies, and practices that are part of the structure of an organization, rather than from one isolated act. It stems, as per Amy L Sheppard, from a set of attitudes and practices, formal or informal, which interact with each other and combine to produce a global effect of exclusion or disadvantage on one protected group. Both direct and indirect discrimination may be involved in this process. Components considered to arrive at a finding of systemic discrimination include negative stereotypical comments; harassment; application of different selection criteria; and land organizational practices with discriminatory impact on members of concerned groups.

Kristin Bumiller observed that merely prohibiting discrimination and providing a legal remedy to victims is insufficient to eliminate discrimination. Research shows that due to fear of retaliation, the cost and length of legal proceedings, and the fear of negative outcomes only a minority of people who feel they have experienced discrimination file discrimination claims. Sandra Fredman identified that individual litigation, moreover, when successful, usually only leads to individual compensation, rather than structural changes. Different forms of collective action are allowed in some countries like class action or proceedings initiated by public interest organizations or equality agencies; however, such cases are complex, long, and costly and therefore quite rare.

Article 27 of the Constitution of the People’s Republic of Bangladesh says, ‘All citizens are equal before law and are entitled to equal protection of law.’ Article 28 says, (1)  The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth. And (2) Women shall have equal rights with men in all spheres of the State and of public life. Also, (3) No citizen shall, on grounds only of religion, race, caste, sex, or place of birth be subjected to any disability, liability, restriction, or condition regarding access to any place of public entertainment or resort, or admission to any educational institution.

Thus, the bindings under Article 27 of Equality of Opportunity mean a situation where each person has an equal chance in a range of areas including education, health and welfare, employment, and political participation. It implies fairness in the procedure to allow each member of the society the same access to social and political institutions. Eliminating discrimination, the concept of Equal Employment Opportunity has a gap in theory and practice in Bangladesh. Bangladesh Civil Service Appointment Rules, 1981, Senior Services Pool, 1979, Bangladesh Public Service (Conditions of Service) Rules, 1980, and Government Officers (Discipline and Appeal) Rules, 1985 yet to ensure Equal Employment Opportunity. The ACR barely accounts for objectivity in the assessment. Being a confidential document, it is neither transparent nor immune from discrimination charges observes Noore Alam Siddiquee.

The draft ‘UN Principles and Guidelines for the Effective Elimination of Discrimination based on Work and Descent’ provides a comprehensive framework of state obligations to remove caste-based discrimination from all areas of life. The guidelines also lay down the responsibilities of development agencies, corporate bodies, and market stakeholders in achieving the same goal. The framework is based on international human rights laws, which the Government of Bangladesh has signed and ratified. The guidelines provide a detailed outline of the ‘tasks to be done’ or ‘measures to be taken’ following the essence and spirit of human rights treaties and conventions convened under the auspices of the United Nations. As per Article 29 Constitutional provisions are in place prohibiting any form of discrimination based on religion. Measures of positive discrimination and government policies for reserving special quotas in public services for religious minorities or denominational institutions are also guaranteed. The Civil Procedure Code (CPC) and the Criminal Procedure Code (CrPC) provide for equal rights for all citizens of the country irrespective of caste, race, religion, or colour in protecting the individual against any form of discrimination or violence. But no affirmative action has so far been taken to improve the condition of Dalits in line with Article 14.[1]

Although the Constitution ensures equal rights to women, they are deprived of their fundamental rights instead for social, economic, political, and religious reasons. Moreover, they are insecure and subject to different forms of sexual exploitation abuse and sexual harassment. The Principle of Equality, as recognised by the Constitution is absent, when Article 10 provides that steps shall be taken to ensure participation of women in all spheres of national life. Article 19 provides that the State shall endeavour to ensure equality of opportunity to all citizens. The UN Convention on Elimination of All Forms of Discrimination against Women 1984 and the Optional Protocol 1998 obligated Bangladesh to maintain equality between women and men and to confirm its provisions in the national legislation and implement through policy actions.

After the recent students’ and people’s movement against discrimination, before taking any action, the State must recognise that discrimination is still an integral part of the society. Policy and laws need to be reviewed and amended ensuring equal and equitable norms. Affirmative Actions, where necessary, should be initiated. All related officials and officers should be oriented to realise the value of non-discrimination, and their obligations thereof under the law. Mass media and social media platforms should be utilised to promote values of non-discrimination. Systemic actions should be taken to cultivate capacity among relevant stakeholders. A monitoring mechanism should be in place to monitor the progress of all actions taken. Seeds that have been sowed by the students and people, shall transform Bangladesh towards the oath that it is taken under Article 7 i.e., ‘All powers in the Republic belong to the people’ – and people only!

The author is an Advocate and socio-legal researcher.

[1] Benchmarking the Draft UN Principles and Guidelines on the Elimination of (Caste) Discrimination based on Work and Descent, Bangladesh Report, Mohammad Nasir Uddin, © Nagorik Uddyog- Bangladesh Dalit and Excluded Rights Movement