Daily Editorial Analysis for 15th June 2020

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The need for an anti-discrimination law

Paper:  II

Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.


Sport is often a microcosm of society. Much as we might sometimes see it as a leveller, it invariably tends to underscore more endemic inequities. Recent revelations made by the former West Indies cricket captain Darren Sammy, therefore, must awaken us to a problem that goes far beyond the cricket field and its narrow confines, of a society replete with racism.

Voices in sport

  • In our country, this problem is only exacerbated by other historically ingrained forms of discrimination, along the lines of caste, class, gender, and religion among other things.
  • racism goes beyond the colour of our skins, that enforcing embargoes on people seeking to buy houses based on their faith ought to equally be seen as a feature of prejudice.

Blow against race-neutrality

  • These prejudices, which pervade every aspect of life, from access to basic goods, to education and employment, are sometimes manifest.
  • But, on other occasions, the discrimination is indirect and even unintended.
  • The latter, however, is just as pernicious.
  • The forms that it takes were perhaps best explained by the U.S. Supreme Court’s ruling in Griggs vs. Duke Power Co. (1971).
  • There, the court held that an energy company had fallen foul of the U.S. Civil Rights Act of 1964 — which made racial discrimination in private workplaces illegal — by insisting on a superfluous written test by applicants for its better entry-level jobs.
  • Although, on the face of it, this requirement was race-neutral, in practice it allowed the company to victimise African-Americans.
  • In a memorable judgment, invoking an Aesop fable, Chief Justice Burger wrote that “tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.”
  • On the contrary, the law, he said, resorting again to the fable, “provided that the vessel in which the milk is proffered be one all seekers can use.”
  • That is, that it wasn’t merely “overt discrimination” that was illegal but also “practices that are fair in form, but discriminatory in operation”.

State and private contracts

  • Both direct and indirect forms of discrimination militate against India’s constitutional vision of equality. The verdict in Griggswas notably applied by Justice S. Ravindra Bhat in the Delhi High Court’s 2018 judgment in Madhu vs. Northern Railway.
  • There, the Railways had denied free medical treatment to the wife and daughter of an employee which they would otherwise have been entitled to under the rules.
  • The Railways contended that the employee had “disowned” his family and had had their names struck off his medical card.
  • The court held that to make essential benefits such as medical services subject to a declaration by an employee might be “facially neutral”, but it produced a disparate impact, particularly on women and children.
  • But while this case concerned discrimination by the state, entry barriers to goods such as housing, schools and employment tend to function in the realm of private contracts.

Constitutional Provision:

  • The Constitution, though, is markedly vocal on this too. Article 15(2) stipulates that citizens shall not on grounds only of religion, race, caste, sex, or place of birth be denied access to shops, public restaurants, hotels and places of public entertainment.
  • Yet, on occasion, this right, which applies horizontally, inter se individuals, comes into conflict with the rights of persons to associate with others, often to the exclusion of certain groups.
  • This is why every time a case of discrimination is brought, the party that discriminates claims that he possesses a liberty to do so, that he must be free to act according to his own sense of conscience.

Supreme Court Judgement:

  • The Supreme Court, in 2005, in Zoroastrian Cooperative Housing Society vs District Registrar Co-operative Societies (Urban) and Others, endorsed one such restrictive bond, when it ruled in favour of a bye-law of a Parsi housing society that prohibited the sale of property to non-Parsis.
  • This right to forbid such a sale, the Court ruled, was intrinsic in the Parsis’ fundamental right to associate with each other.
  • But in holding thus, the judgment, as Gautam Bhatia points out in his book, The Transformative Constitution, not only conflated the freedom to contract with the constitutional freedom to associate, but also overlooked altogether Article 15(2).


  • At first blush, Article 15(2) might appear to be somewhat limited in scope. But the word “shops” used in it is meant to be read widely.
  • A study of the Constituent Assembly’s debates on the clause’s framing shows us that the founders explicitly intended to place restrictions on any economic activity that sought to exclude specific groups. For example, when a person refuses to lease her property to another based on the customer’s faith, such a refusal would run directly counter to the guarantee of equality.
  • An overruling of the verdict inZoroastrian Cooperative, while desirable, is unlikely, however, to serve as a panacea. India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation.
  • In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law which prohibits unfair discrimination not only by the government but also by private organisations and individuals.

Attempts at change

  • In India, there have been a few efforts to this end in recent times.
  • Shashi Tharoor introduced a private member’s bill (drafted by Tarunabh Khaitan) in 2017, while the Centre for Law & Policy Research drafted and released an Equality Bill last year.
  • These attempts recognise that our civil liberties are just as capable of being threatened by acts of private individuals as they are by the state.
  • Ultimately, our rule of law must subsume an understanding that discrimination partakes different forms. Any reasonable conception of justice would demand that we look beyond the intentions of our actions, and at the engrained structures of society.
  • This does not mean that we need to live under an illusion that a statute will resolve our systemic biases, that we will somehow magically transform ourselves into the kind of nation that B.R. Ambedkar envisioned.
  • But, now more than ever, as we look to reset our societal arrangements in the wake of COVID-19, a rededication to our original constitutional commitment could be worthwhile.
  • To that end, the idea of enacting a law that will help ameliorate our ways of life, that will help reverse our deep-rooted culture of discrimination, is worth thinking about.

Making public transport safe during COVID-19

Paper: II

Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.


Several safety measures could prevent mass transmission of the virus and a shift to private modes of transport. A recent paper from the Massachusetts Institute of Technology argued that New York’s subways seeded the epidemic in the city. While the research fails to establish causation from the observed correlation, as the author had admitted, it cannot be discarded as implausible. It is commendable that India shut down public transport before it could contribute to the spread, with an early lockdown. We now need to consider what can ensue on a restart, especially of metro rail.

COVID-19 and public transport

  • Fearing crowd infections, commuters prefer travelling in private modes like two-wheelers. Cities like Delhi, that resumed services nearly four weeks ago, observed less ridership than the allowed 20 passengers per bus, despite the limited frequencies on many routes.
  • Although bus crowding is seen in some cities such as Mumbai, it is temporary and due to a lack of alternatives.
  • A significant drop in public transport ridership can be expected for months after resumption, based on opinion surveys. That means measures are needed to gain the public’s confidence in mass transport modes, to avoid a significant modal shift to road traffic.
  • The Delhi Metro Rail Corporation has released guidelines to tackle several social distancing and sanitisation concerns, and to address the possibility of viral transmission through tokens, push buttons on lifts, and handrails at the station elevators.
  • Other metro rail systems are also expected to follow similar guidelines.

Are these measures enough to prevent serious viral transmission?

  • Public transit agencies around the world face the problem of a dearth of research by scientists on the specific modality of COVID-19 transmission during public transport commute.
  • Confidentiality laws usually prevent the availability of contact-tracing data to extract the precise details of how any individual got infected.
  • There have been some notable research efforts, currently under peer review, that did use detailed contact-tracing data from China and Korea.
  • One study says that SARS-CoV-2 does not seem to get transmitted much outdoors.
  • Only a single cluster of two cases out of nearly a thousand was traced to an outdoor infection in China. Correlation to the effect of air conditioning airflow has also been established based on precise seating locations of those infected at a restaurant and at a call centre.
  • Indian authorities who were already working under similar assumptions on the effects of AC will be proven justified by the conclusion of such research that there is clearly high risk in indoor areas under AC with focused air flow.
  • From the above research we can conclude that a non-AC bus with open windows offers a much less risky outdoor-like environment.
  • However, it would be wrong to conclude that an AC metro rail coach is risky – for a different reason, in that contact-time is also very important in viral transmission in indoor spaces.
  • A majority of metro rail trips in Indian cities are no more than 20 minutes long, and there is research indicating that this may not be long enough for significant viral densities and inhalation of sufficient viral particles, even without social distancing.
  • It is unlikely for any significant level of public transport infections to happen via inhalation or even crowding and clothed-body contact, though we cannot say it with certainty.
  • Hand contact with common surfaces must be considered, as it is well-known to cause significant COVID-19 spread.
  • However, they leave out certain key elements that should be taken very seriously – the handgrip rings and handrails from the ceilings, the stanchion poles, and any grabrails on the seatbacks.
  • If an infected asymptomatic person deposits viral particle on such surfaces, and another person grabs the same spot even briefly, the viral particles could be picked up by their hand.
  • The second person could later deposit the particles on his/her face.
  • Probabilities may help, and another person may not hold on to the exact 3-inch long area before the virus dissipates, in all cases but one – that of the handgrip rings.
  • Their surface is potentially the most dangerous inside a coach.
  • Every successive individual who hangs on to the handgrip where one infected person deposited the virus can pick up the virus at a high density from the same spot.
  • Then the probability is quite high that, within an hour, two or three others could pick up the virus left by one person on a handgrip.
  • There is also a high probability that those people will touch their faces soon after.

Suggestions for more safety

  • Considering such possibilities, we offer a few safety suggestions that can be implemented immediately. The first is to employ staff to wipe the handgrips at frequent intervals, constantly moving from end to end in the train. Any handgrips in buses also need to be cleaned often.
  • Another is to give wet sanitizing wipes to every traveler entering a metro rail coach with a suggestion to have it in their palms before touching or gripping anything. Wipe disposal bins will be needed in the coaches.
  • The metro rail agencies’ focus may need to shift to the egressing passengers, as it is important to prevent them from transferring what is on their hands to their faces after egress.
  • We should expect a lot of passengers to leave in a hurry and to not bother with cleaning their hands, even if hand sanitizer dispensers are available.
  • Paid staff or volunteers dispensing hand sanitizers on platforms can be an option. Offering contact-less wash basins with soap dispensers at the platform level could be effective.
  • Signs on hand hygiene vis-a-vis touching surfaces are needed.
  • There are possible options in metro trains to create external airflow to dissipate viral particles. Metro rail authorities are planning to leave the doors open at the terminal before the next run of each train.
  • Since a majority of metro rail stretches in India are elevated, there are other creative options, if safety considerations will allow them.
  • One would be to have staff onboard to direct passengers away from a certain coach to other coaches.
  • The doors of the empty coach can be opened during a run for two or three minutes.


We are not aware of such operations anywhere, so any attempt must only be after careful experimentation. Eventually, metro rail AC systems could be changed to High Efficiency Particulate Air filters with frequent circulation of fresh air. Actions are needed from both authorities and the public to keep our public transport systems safe. If no such actions are taken and a serious level of viral transmission is later traced to public transit, the result will be a mode shift to private vehicles. As pollution and accidents kill more people in India than COVID-19 does now, a mode shift away from public transport will have long-term consequences. Our buses and trains must be perceived as safe, so it is vital to assure ourselves that public transport is for the public – not the virus.

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