THE PREJUDICED NEED NOT APPLY: CHALLENGING THE DISCRIMINATORY EFFECTS OF PRIVATE TRANSACTIONS IN INDIA

Abstract

This paper seeks to question the philosophical and constitutional basis of the ‘freedom to discriminate’ of private parties under private laws of India. To that end, it situates this issue in the Rawls-Nozick debate of libertarian vs. egalitarian conceptions of property rights. It probes the stand of India’s equality code in this debate and teases out its unique contribution to the Rawlsian idea of ‘justice as fairness’. But the roadblocks in horizontal application of non-discrimination rights remain a pressing concern. Reliance is placed on contemporary theories of non-discrimination to solve this problem. Lastly, the possible concrete ways of ensuring non-discrimination in private law are discussed, and the best negotiated path is identified.