PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation INDIA: EQUALITY DUTIES UNDER THE ANTI-DISCRIMINATION AND EQUALITY BILL Sections 14–16 of the Anti-Discrimination and Equality Bill of India559 establish three duties that duty bearers identified under the Act are required to fulfil, which are (a) an anti-discrimination duty; (b) a diversification duty; and (c) a due regard duty. The anti-discrimination duty is detailed under section 14 of the Bill. This duty would require relevant duty bearers to refrain from discrimination, and “institute a readily accessible, independent and wellpublicized formal complaints mechanism” in accordance with guidance issued by the Central Equality Commission (the establishment of which is foreseen under chapter III). The diversification duty, which is detailed under section 15, would require: “Every public authority, landlord or housing society managing over fifty residential units, secondary or tertiary educational institutions, private person performing public functions and employers with more than one hundred employees [to] calculate, publish and report their Diversity Index to State Equality Commission, in a form prescribed by the Central Equality Commission.” Persons and bodies bound by the diversification duty would be required to take “measures to progressively realize diversification in all aspects of their work” and the discharge of their responsibilities. Public authorities would further be required to conduct “regular training sessions for their personnel to sensitize them [to] the importance of equality, anti-discrimination and diversity, and to educate them for carrying out the purposes of this Act”. The due regard duty is set out under section 16 and provides that: “All public authorities while making a rule, regulation, policy or strategic decision shall give due regard to [eliminate] all forms of discrimination to promote equality and diversity.” Remedies for breach of the anti-discrimination, diversification and due regard duties are set out under section 33 and may include “any appropriate order, declaration, injunction, relief or award”. These may include, inter alia, an order for damages (and the payment of exemplary damages for cases of aggravated discrimination), an order to apologize and ensure non-repetition and an order to undergo training. Equinet identifies four approaches to mainstreaming duties adopted in Europe: (a) an “equality plan approach”, which requires the analysis of the different “situations and experiences of discrimination and inequality and defining objectives, targets, and measures to address these”; (b) a “coordination approach”, which requires institutional collaboration between government departments, inter alia, to develop a comprehensive equality strategy; (c) a process approach, which involves mainstreaming equality within “existing public sector processes”, for instance, relating to public procurement; and (d) an “equality impact assessment approach”.560 This last approach – which is followed in, for example, Belgium, Estonia, Finland, Great Britain and Northern Ireland561 – is discussed in more detail below, given the wider role of equality impact assessment in States meeting their international law obligations. VICTORIA (AUSTRALIA): GENDER EQUALITY ACT The Gender Equality Act of Victoria (Australia) was adopted in 2020 and came into force on 31 March 2021. It applies to public sector bodies and has two main functions. First, the Act imposes a positive duty on organizations to mainstream gender equality in developing policies and programmes and delivering public services (sect. 7). The duty requires organizations to (a) consider and promote gender equality; and (b) take necessary and proportionate action towards achieving gender equality. While this duty is not directly enforceable, it is the first of its kind in Australia. Second, the Act establishes a review, reporting, monitoring and enforcement process to advance gender equality in employment in public sector bodies, with an emphasis on intersectional equality. This process 72 559 For further discussion of the Bill and its legislative background, see section III.D of part one of the present guide. 560 Crowley, Making Europe More Equal, pp. 30–40. 561 Ibid., p. 30.