India: Implementation Of DE&I: Legal
Position In India
20 October 2022
by Arjun Paleri and Jaya Ramachandran
BTG Advaya
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with the authors
With many companies consciously focusing on diversity, equity and inclusion (“DE&I”) practices like never before, it
has become increasingly evident that DE&I at workplace not only rectifies discriminatory behaviour and helps in
creating a culture of respect and integrity, but it also has a commercial impact on organisations. Companies are
seriously considering different DE&I strategies that best suit their organization and that can be practically
implemented. Simultaneously, over the years laws have also become increasingly progressive by imposing several
responsibilities on employers.
And while organisations may put their best foot forward in preparing a DE&I strategy that match their business
objectives and put in place a DE&I policy that clearly shows their commitment towards it, they should be careful to
ensure that their DE&I initiative is consistent with local, state and federal laws.
Especially for organisations that have a global presence and hence take a global approach in implementing DE&I, it is
imperative to understand that the DE&I needs for each market may vary and the legal nuances for these jurisdictions
also have to be understood. So, while the overall DE&I strategy may be led by an organisation's global headquarter,
the organisation will have to some extent “localise” their global approach to ensure effectiveness and compliance with
local laws.
Laws governing DE&I
In India, there is no comprehensive legislation that specifically deals with diversity, equity and inclusion nor is there a
statutory requirement to implement a DE&I programme; however, there are certain legislations in place that
acknowledge lack of equity and inclusion and therefore recognizes the need to hire and act fairly when dealing with
employees.
Many of these anti-discrimination legislations in India have come into force in the last few years, highlighting the
increasing need to have in place anti-discriminatory policies and processes to have a safe and inclusive work
environment.
Also, it is noteworthy to mention that the new labour codes that are yet to come into effect and be implemented also
recognise the need to face-lift existing practices and legislations. The Equal Remuneration Act, 1976 (“Equal
Remuneration Act”) is one of the 29 central legislations that will be subsumed by labour code once they come into
effect. While the Equal Remuneration Act places a duty on employers only with respect to men and women and no
other genders, the labour codes take this forward and mandates employers to not discriminate between recruits and
potential employees of any gender, thereby ensuring that individuals that do not strictly identify as men or women are
also not discriminated against.
The Indian judiciary has also time and again acknowledged the need to change the mindset of the society. In a recent
landmark judgment by the Madras High Court (S. Sushma Versus the Commissioner of Police, W.P. No. 7284 of 2021),
the Madras High Court issued directions and guidelines for handling issues faced by LGBTQIA+. Additionally, the court
suggested the Government of India & Tamil Nadu conduct sensitization programs for various stakeholders, including
public and private workplaces.
Legislative stand on DE&I data
There is no specialised regulation in India governing the collection and processing of DE&I Data. However, there are
data protection laws governing the collection, storage, processing and/ or transfer of ''Personal Information" ("PI") and
"Sensitive Personal Data or Information" ("SPDI") of individuals and these data protection laws will apply to
organisations for collecting and processing DE&I data.
Additionally, organisations also need to check whether any of the legislations that impose affirmative actions on the
employer or any of the anti-discriminatory legislations impose any additional obligation and responsibilities with
respect to collection of DE&I data over and above the requirements mandated by data protection laws.
Things to consider:
Have in place DE&I and anti-discrimination policies to bring about positive cultural and strategic changes and
also to address the local statutory requirements.
While collecting or processing DE&I data, organizations should ensure that its data protection practices are in
accordance with the requirements of the applicable laws to collect or process such data.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be
sought about your specific circumstances.
