Abstract

The right to equality is an essential constitutional tenet and the right to equal treatment before the law is its inevitable outgrowth and complement. In the Constitution of Mauritius, the specific section relating to equality, section 16, provides for protection of the citizen against discrimination on specific grounds under given circumstances. In its effect, this provision is limited both in its scope and its ambit and does not adequately protect the right to equality, as will be demonstrated in the present article. This provision is in fact remote from the right to equality and equal treatment before the law as propounded in other constitutions such as the Constitution of India and the Constitution of South Africa. Equality takes an even greater importance when viewed from the spectrum of a plural society with a high cultural diversity with underlying communal susceptibilities as in the case of Mauritius. This article endeavours to demonstrate why it is important to review the current constitutional provision on protection against discrimination and replace it by two distinct provisions, namely, the right to equality and the right to equal protection of the law. Hence, the narrowness of the current Mauritian dispensation will be highlighted and contrasted with the extensive jurisprudence which has developed from constitutional adjudication in India and South Africa. This analysis of Indian and South African jurisprudence will be used to illustrate how much Mauritius is actually missing out because of the current constitutional dispensation in comparison to these two jurisdictions. The choice of India and South Africa for this study is motivated by their diversity which displays similarities with Mauritius despite the differences: all three countries are multi-cultural and multi-religious. India and South Africa are both geographically large countries and their constitutional provisions on equality are resembling. Both countries have a very elaborate Constitution and their respective judiciary has a transformative approach towards constitutional dispensation and adjudication. India has a post-independence Constitution while South Africa has a post-democracy and post-apartheid Constitution which have both been drafted by a Constituent Assembly. However, these similarities which India and South Africa share, make both very different from Mauritius. Mauritius is a very small Island State situate in the Indian Ocean . Mauritius also has a post-independence Constitution which was not drafted by a Constituent Assembly but was granted by the departing colonial power when Mauritius acceded to independence. Nevertheless, despite such differences, lessons may still be drawn from India’s and South Africa’s rich jurisprudence and their transformative approach to adjudication.

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