“Western civilization, Christianity, decency is struggling for their very lives. In this worldwide civil war, sexual, racial & religious prejudice is our most dangerous enemy, for it is a disease at the very root of our democratic life.”
Discrimination is the prejudicial and/or distinguishing treatment of an individual based on their actual or perceived membership in a certain group or category, “in a way that is worse than the way people are usually treated.” It means that certain groups are denied equal protection of the law against violence inflicted on them, such as racist attacks, domestic violence, attacks targeted at people because of their actual or assumed religion or sexual orientation. It is the unlawful and intentional unfair treatment of a person based on any of a set of federally protected characteristics. It is a differentiating treatment of an individual based on their race, gender identity, color, age and others. It is granting of some advantage to a particular section or class of society over others. Discrimination in law enforcement can mean that certain groups are viewed by the authorities as ”potential criminals” and so are more likely to be arrested and imprisoned. It can also mean that they are more likely to suffer harsher treatment, possibly amounting to torture or other forms of ill-treatment, once in criminal justice system.
“Discrimination is an assault on the very notion of human rights. Discrimination is the systematic denial of certain peoples’ or groups’ full human rights because of who they are or what they believe. It is all too easy to deny a person’s human rights if you consider them as “less than human”
Discrimination law has been designed to prohibit the unfair treatment of a person or group of people based on those protected characteristics. Racial discrimination, age discrimination, gender discrimination and disability discrimination are all prohibited by federal law.
Discrimination brings the meaning unfair treatment of a person or group on the basis of prejudice and partiality. It can lead to emotions such as frustration and anger. In humans, it is a mild or serious form of suffering, often with anger about this, in particular, if applicable, anger at the person or persons who caused it.
Effects of Discrimination
Discrimination has many harmful effects on society in the past and exists when individuals are treated unfairly because of their particular race, gender, age, ethnic group, physical disability, or religion. Discrimination poisons the atmosphere of trust that we need in order to live peacefully. Discrimination can negatively impact a person’s employment, housing, loan application, business, access to medical services, access to education and access to other public services. Discrimination can also be a violation of a person’s human rights. The effects of racial, sexual, and religious discrimination have both mental and physical consequences such as: depression, stress and anxiety.
The three most prominent effects of discrimination are Inferiority, fear, and anger. Inferiority is a major issue when discussing the effects of discrimination. As we see, earlier white man’s facilities were almost 100 times better than the blacks. Then in the Brown vs. Board of Education in Topeka case it was brought to attention that discrimination obviously affect the children’s state of mind. In the experiment to prove this hypothesis many black children were given a variety of white dolls and black dolls. They were then told to describe what they thought of each doll. The results were in fact that majority of the young black children related the bad characteristics with the black dolls and the good characteristics with the white dolls. It was then proven that discrimination have long term inferiority issues with the children.
The Effects of Discrimination on Society
As far as historical records show, no society or nation has been immune to discrimination, either as victim or victimizer. Contemporary forms of discrimination date back to when European colonizers penetrated and transformed previously isolated societies and peoples. The more extreme forms of discriminatory practices include genocide, slavery, legislated discrimination (such as Apartheid), discriminatory immigration laws, and disenfranchisement. Less extreme forms of prejudice and discrimination, but nevertheless pervasive and oppressive, include social exclusion at the institutional level (such as in schools and hospitals), and the more subtle forms practiced by the media.
Our world has always been faced with the problem of discrimination. It is one of the most discussed topics nowadays and throughout history. In all countries there is most likely at least one type of discrimination that affects different groups of people. The definition of discrimination is the denial of opportunity or equal rights for a specific group of people that may be differentiated by things such as their religion, color of skin, or gender. Discrimination can be confused with other terms such as prejudice and stereotype.
The world we live in has been struggling with this sensitive subject for as long as we have recorded. Stereotypes are images held in our minds in regards to certain racial or cultural groups, without consideration of whether the images held are true or false. Stemming from stereotypes is prejudice. The prejudicial attitude occurs when we prejudge a person, good or bad, on the basis that the stereotypes associated with the person or group being prejudged are true. Discrimination is the combination of theboth, but involves actually acting out with unfair treatment, directing the action towards the person or group..
The effect of racial, sexual or religious discrimination has a big impact in the society. Since start the modern life discrimination has given different destines for people the entire world. People still face racism in most countries as USA, Africa and Brazil, even with the end of apartheid have a high difference between black and White. Unfortunately the opportunities for white people in these countries are better than for black. In Brazil the impact of this discrimination is shown through the statistic of per capita income that in white families are bigger than in Afro families. Women have been fighting for their rights and have changed society, becoming important politicians and leaders. They still have some obstacles, women’s salaries in some professions are devalued compared with men’s salary and there is a lot of violence against women in everywhere. Religious discrimination has been the cause of most of wars. Just to be Jewish caused the death of millions of people in the second war. Nobody likes to be different and its even more difficult when others do not accept differences. Homosexuals are one example of the effect of intolerance. Gay or lesbians were treated as sick people, a psychological disease. They were not accepted in schools and public spaces. Society made a big progress about homosexuality, in some countries it is already permitted married between people of the same gender and have had a positive effect in this society.
The Need to Fight Discrimination
Discrimination runs against the most fundamental values of a modern society. It is a threat to democracy, which is predicated on the idea of a society in which arbitrary hierarchies and preferences based on e.g. gender, ethnic origin and wealth have been eliminated with a view to achieving equality. Democracy recognizes the equal worth and equal rights of all citizens, unlike various authoritarian systems of rule. Equality, by way of prohibition of discrimination, is also the cornerstone of human rights: all human rights belong to all, without discrimination of any kind, and as such the concept of equality is implicitly embedded in the notion of human rights itself. The right of all persons to equality before the law and protection against discrimination constitutes a universal human right recognized in several human rights instruments, f or instance the Universal Declaration on Human Rights (UDHR).
Prohibition of discrimination is also an essential element of national legal systems, as it seeks to eliminate arbitrariness in decision making, enhancing the inclusiveness and predictability of decision making and thus the functioning of the legal system. Discrimination not only forms a menace to the society, but also to the individual who is subjected to such an adverse treatment. Discrimination is a direct denial of the equal worth of the victim, and as such, acts of discrimination have a dual negative effect: the denial of a right, service or good that the person is entitled to, and the denial of the full and equal worth of that person. Discrimination is made all the more grave by the fact that it often takes place on grounds that are not subject to choice, such as ethnic or racial origin, sex, age, sexual orientation or disability. The consequences of discrimination match the severity of the offence: discrimination has a causal link e.g. to alienation, exclusion, radicalization, and decreasing psychological well-being.
Law is one of the most, if not the most important tool in the fight against discrimination. Hence it is essential that there exists laws against discrimination and that those laws are duly implemented. The judicial system has a fundamental role to play, as it represents authority and public order, an d has been entrusted with the task of providing legal safeguards to the victims of discrimination.
The Role of Law and the Legal System in the Fight against Discrimination
Law is perhaps the most important instrument in the fight against discrimination. Law reflects the most fundamental values of the society and conveys a message of what is considered acceptable or unacceptable in society. Law also creates social stability through creating legitimate expectations of the way people are supposed to behave in different everyday situations. Anti-discrimination law is an essential tool in securing the functioning of democracy and human rights.
What the Law and the Legal System Can Do?
The aim of any law is to modify the behavior of those subject to regulation in order to achieve a desired outcome. At the same time law has symbolical value in outlining the fundamental values of society. But provisions, as such, are only a piece of text on a paper – in order for them to produce those desired outcomes people obviously have to actually use them. The functions of any law, including antidiscrimination law are threefold: preventive, corrective and punitive. The law acts as a constraint on undesired action by individuals and institutions (preventive role of law), provides a remedy to the victims of discrimination (corrective role of law) and punishes those who discriminate (punitive role of law). Criminal law also effectively conveys the message of societal condemnation of discrimination.
The Human Right to Freedom from Discrimination
Every woman, man, youth and child has the human right to freedom from discrimination based on gender, race, ethnicity, sexual orientation or any other status, and to other fundamental human rights dependent upon realization of the human right to freedom from discrimination. These human rights are explicitly set out in the Universal Declaration of Human Rights, the International Covenants, the Convention on the Rights of the Child and other widely adhered to international human rights treaties and Declarations i.e. powerful tools that must be put to use in efforts to eliminate all forms of discrimination.
Protective Discrimination- Modern Approach
The weaker section was left in cold for years as nothing more than garbage in the society. To take one’s measure from the class or caste to which he or she belong amounts to discrimination. Protective discrimination means a privilege or some right in favour of those who had been discriminated and oppressed since ages. It is a well known quote that “IRON CUTS IRON”, hence discrimination counters discrimination. It is evident from history that one sort of discrimination is destructive while the other one is protective and curative in nature.
In a very important case of Indra Shahani vs. Union of India the Supreme Court declared 27% reservation legal for socially and economically backward classes of the society under central services.
Basically protective discrimination is used to fulfill those lacks which arise due to a long time deprivation. It is a part of corrective and compensatory justice. It has been told that peoples of backward class of society have been bearing injustice for generation to generation. Some peoples of the society made supremacy on the benefits of the society and made deprived to others. So this provision of protective discrimination has been made for those deprived people who are living in unbeneficial circumstances.
The following provisions of the chapter on Fundamental Rights ensure civic equality:
ü Equality before the Law (Article 14).
ü Prohibition of discrimination on grounds of religion, race, caste, sex of place of birth (Article 15).
ü Equality of opportunity in matters of public employment (Article 16).
ü Abolition of untouchability (Article 17).
ü Abolition of titles (Article 18).
At the time of independence, the constitution makers were highly influenced by the feeling of social equality and social justice. For the same reason, they incorporated such provisions in the constitution of India. These are as follows –
The words, “Socialist”, “secular”, “democratic” and “republic” have been inserted in the preamble, which reflects it’s from as a “social welfare state and to avoid discrimination” The expression “socialist” was intentionally introduced in the Preamble.
In D. S. Nakara v. Union of India, the Supreme Court has held that the principal aim of a socialist state is to eliminate inequality in income, status and standards of life. The basic frame work of socialism is to provide a proper standard of life to the people, especially, security from cradle to grave. Amongst there, it envisaged economic equality and equitable distribution of income. This is a blend of Marxism & Gandhism, leaning heavily on Gandhian socialism. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society reveals a long march, but, during this journey, every state action, whenever taken, must be so directed and interpreted so as to take the society one step towards the goal.
The term ’equality’ means the absence of special privileges to any section of the society, and provision of adequate opportunities for all individuals without any discrimination. The Preamble secures at all citizens of India equality of status an opportunity. This provision embraces three dimensions of equality- civic, political and economic.
The government has passed multiple acts to prevent against discrimination:
ü Civil Rights Act of 1964: The first of many legislations banning discrimination based on race, color, religion, gender or national origin. Included in the Act were the prohibition of unequal application of voter registration requirements, prohibition of discrimination in hotels, motels and other public accommodations, prohibition of governments from denying access to public facilities on the basis of race, religion, gender or ethnicity and the prevention of discrimination by government agencies that receive federal funding.
ü The Equal Pay Act of 1963: Protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
ü Age Discrimination in Employment Act of 1967: Protects persons 40 years old or older from employment discrimination and also sets guidelines for employment benefits and pensions.
ü Civil Rights Act of 1968: Prohibits any discrimination (race, religion, sex, handicap, family status and national origin) to affect the sale, rental or financing of housing.
ü Civil Rights Act of 1991: Provides monetary damages in situations where employees have been subjected to intentional employment discrimination.
ü Pregnancy Discrimination Act of 1978: Protects women from being fired or not considered for employment or promotions due to a current or future pregnancy.
ü Title IX of the Education Act of 1972: Prohibits gender discrimination in education programs, including athletic programs, that receive federal funding.
ü Americans with Disabilities Act of 1990: Prohibits discrimination based on an individual’s disability. This law protects those with physical and mental disabilities and chronic illnesses such as cancer, HIV/AIDS, or epilepsy.
“All human beings are born free and equal in dignity and rights. Everyone is entitled to rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Everyone, without any discrimination, has the right to equal pay for equal work….” —Universal Declaration of Human Rights
Discrimination runs against the most fundamental values of a modern society. In fact, it is a threat to democracy, which is predicated on the idea of a society in which arbitrary hierarchies and preferences based on, for example gender, ethnic origin, and wealth have been eliminated with a view to achieving equality. Democracy recognizes worth and equal rights of all whereby, equality prohibits discrimination which is also the cornerstone of human rights. It not only forms a menace to the society, but also to the individual who is subjected to such an adverse treatment as it is a direct denial of the equal worth of the victim. It is a violation of a person’s identity. The consequences of discrimination match the severity of the offence, a causal link to alienation, exclusion, radicalization and decreasing psychological well-being. Personally I hate racial discrimination most intensely and all its manifestations.
 By the 42nd Constitutional (Amendment) Act, 1976
 (1983)1 SCC305
 Laxmikanath, M., Indian polity (2008) p. 29