A large number of anit-discrimination commission are
coming up.Whither the future Of these
commissions?State and civil society are moving into
two directions.
--- CK Vishwanath <[EMAIL PROTECTED]> wrote:
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DEALING WITH DISCRIMINATION
by Tarunabh Khaitan
The Equal Opportunity Commission is an idea whose time
has come.
[Photo]R.V. Moorthy
[Photo caption]Justice Rajinder Sachar presenting
the report of the committee he headed, which
studied the Muslim community's condition in
India, to Prime Minister Manmohan Singh in New
Delhi on November 17, 2006.
THE Expert Group set up by the Ministry of
Minority Affairs "to examine and determine the
structure of an Equal Opportunity Commission"
submitted its report in February, in which it has
proposed a draft Equal Opportunity Commission
Bill (EOC Bill). The group, chaired by Professor
Madhava Menon, was set up to suggest a workable
institutional structure for an Equal Opportunity
Commission as recommended by the Justice Rajinder
Sachar Committee's "Report on Social, Economic
and Educational Status of the Muslim Community of
India" (November 2006). The report, while being
rooted in Indian circumstances, has drawn from
the experiences of countries that have had
anti-discrimination laws for years and is an
important and positive milestone in our
understanding of strategies to respond to
discrimination.
Before analysing the features of the proposed
Bill, a brief clarification on the meaning of
discrimination is needed. Traditionally,
discrimination has been criticised because it
results in inequality. However, an autonomy-based
understanding of discrimination looks at what is
wrong with the act of discrimination itself. This
is a more persuasive moral foundation for
anti-discrimination measures.
We "discriminate" in all aspects of life, and,
most of the time, there is nothing wrong with it.
We choose not to make friends with bullies or
insensitive people. Few of us will want to have a
violent person for a partner. Professor John
Gardner explains that what sets apart legitimate
discrimination from illegitimate discrimination
on the basis of caste, sex, race, place of birth,
gender identity, nationality, disability,
religion or sexual orientation is that the latter
unfairly impairs a person's autonomy.
A fundamental tenet of liberalism is that human
beings are autonomous beings who have the right
to shape their lives according to their own
wishes so long as they do not impair the autonomy
of others. Everyone has to author his/her own
life and make lifestyle choices. When these
choices are authored by someone else and imposed
upon a person, one's fundamental right to
autonomy is violated. All the grounds considered
to be illegitimate bases of discrimination have a
single thread running through them: they are
inextricably linked to one's exercise of personal
autonomy. The illegitimate grounds of
discrimination are either ordinarily beyond the
control of the individual or are such fundamental
life choices that a non-consensual, externally
enforced change would be imposed only at a very
high personal and emotional cost and, therefore,
should effectively be treated as beyond the
control of the individual.
Now, if individuals are discriminated against on
any of these grounds, they are being denied
opportunities for things beyond their effective
control. If one is denied a job because one has a
short temper and cannot work in a team, one's
autonomy is shaped by choices one has made
oneself. However, if one is denied a job because
of one's sex or caste or sexual orientation,
one's autonomy is violated for no fault of the
individual concerned. Clause 2(g) of the Bill,
therefore, correctly defines "deprived group" as
"a group of persons who find themselves
disadvantaged or lacking in opportunities for
reasons beyond their control". While this
definition could be interpreted so as to include
fundamental life choices that are effectively
beyond the control of an individual, the Bill
should expressly specify "fundamental choice" in
addition to "beyond their control" in order to
remove all doubt.
Locating illegitimate discrimination in the
violation of personal autonomy responds to
concerns about prohibiting discrimination in the
private sector. When any effort is made to
regulate behaviour in the private sector, an
equality-versus-liberty debate is raised where
the equality of deprived groups seems to be in
conflict with the liberty of employers to run
their businesses as they wish. However, with the
explanation just provided, it is liberty at stake
on both sides of the balance, which makes
comparison easier.
Should a private employer's liberty to commit an
unjust act (by illegitimately discriminating) be
held superior to applicants' liberty to author
their own lives without being punished for things
that are beyond their effective control? Viewed
in this manner, the answer is much more obvious.
It is worth noting here that all that employers
are being asked to do is to not take into account
illegitimate factors, which are irrelevant from
the business point of view anyway. Race or caste
has no relation to one's ability to perform, and
the private employer can still rely on the
relevant abilities of the candidate. This is not
an argument for providing reservation in the
private sector although the possibility of such
an argument being made cannot be denied either.
The Menon Committee report is, correctly, "of the
firm opinion that the jurisdiction of this
Commission should not be limited to the public
sector" (paragraph 4.6).
India has grappled with the question of
discrimination right from the moment it started
making its Constitution. The Constitution clearly
prohibits discrimination by the state, and this
is enforced directly by the Supreme Court and the
High Courts. The success of this constitutional
prohibition is a mixed bag, but in comparison
with all other efforts, there is no doubt that
this has been the best implementation strategy.
The Protection of Civil Rights Act, 1955 (CRA),
prohibited discriminatory acts in the private
sector on the basis of untouchability, on pain of
criminal punishment. Similarly, the Equal
Remuneration Act (ERA), 1976, prohibited
discrimination against women in employment,
recruitment and pay. This provision is also
backed by criminal sanction.
The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act (PDA), 1995, is a much more
sophisticated piece of legislation, which drew a
lot from global experiences. The Act prohibits
discrimination in the public and private sectors
and demands that reasonable accommodation in
terms of special facilities (such as wheelchair
access) be made for disabled persons. It also
provided for a dedicated enforcement agency.
In the 21st century, newer claimants to
non-discrimination have emerged. A petition filed
by the Naz Foundation, demanding that the state
be prohibited from discriminating against gay
people on the basis of their sexual orientation,
is pending in the Delhi High Court. Increasing
activism by transgender people has brought to
light gross discrimination on the basis of gender
identity. The culmination of this historical
churning and the immediate catalyst for the EOC
Bill was, of course, the Sachar Committee report,
which detailed the widespread discrimination in
India against Muslims.
This historical review offers several lessons.
First, it tells us that discrimination is a
socially contingent problem. Identification of
groups that are seen to deserve protection
depends on the socio-political and moral context
of a given time, which usually results in ad hoc
responses directed at particular groups. A
holistic solution must, therefore, transcend this
ad hocism by putting in place institutions that
are resilient enough to adapt to new realities on
a principled basis.
Secondly, the public-private divide with respect
to the prohibition of discrimination is
pointless. As the section above explains,
discrimination by a private person is as wrong as
discrimination by the state. The need to impose
on the private sector the obligation not to
discriminate unfairly has been increasingly
recognised since the time of the framing of the
Constitution - in the CRA, the ERA and the PDA.
Thirdly, the limited success of these measures
has two further lessons. So far, Indian laws have
only recognised direct or intentional
discrimination. However, discrimination often
works in subtle and unconscious ways. An
ambitious anti-discrimination legislation must
encompass indirect discrimination in all its
complexities.
Finally, one has to consider the question of
implementation. The CRA and the ERA did not go
very far in ending discrimination on the basis of
caste and sex. While some of the blame must be
laid on the lack of a specialised implementation
agency (which exists under the PDA), a more
important reason for their failure is that their
implementation is not victim-driven.
Contrast this with the constitutional protection
against discrimination by the state, which gives
agency to the victim of discrimination to take up
the matter directly with the Supreme Court and
High Courts. The CRA and the ERA are both
criminal statutes where the victim has but a
secondary role and the proof required is beyond
reasonable doubt. So, successful prosecutions are
rare, and immediate benefit to the victim is
limited. It is a matter of common sense that if
implementation is to be ensured, agency must be
placed in the hands of those most likely to
benefit by it.
Any effective anti-discrimination measure has to
focus on the most intractable of problems and
cannot spread the protection so wide that
implementation becomes impossible. Therefore, the
EOC Bill has envisaged the concept of a
"deprivation index" to identify "deprived
groups", those groups that are suffering because
of systemic and widespread forms of
discrimination (paragraph 1.9). Although isolated
forms of discrimination are also wrong, because
they are isolated and not systemic or widespread,
the victim usually has other opportunities open
with other employers. But deprived groups that
are systematically discriminated against have no
options because a significant number of employers
discriminate against them. Members of these
deprived groups must get priority protection, as
envisaged by the Bill.
The Bill also recognises that the concept of
deprivation changes with time. What is today a
deprived group may not be so tomorrow. Protection
will be dependent not on much-maligned "vote-bank
politics" but on a principled demonstration of
deprivation through the deprivation index. There
is no permanent winner or loser in this game,
except the idea of deprivation itself (paragraph
4.4).
The Bill also realises that it cannot correctly
predict all future grounds of illegitimate
discrimination and, therefore, prohibits
discrimination "on the basis of sex, caste,
language, religion, disability, descent, place of
birth, residence, race or any otherÅ ". The final
residual clause, "or any other", is a
place-holder for other analogous
autonomy-infringing grounds that may be filled in
later. Although this foresight is commendable, it
will be a good idea to expand the list to include
currently known analogous grounds, such as
"sexual orientation, marital status, food
preference, age, dress preference, gender
identity, pregnancy", while still retaining the
residual clause.
Finally, the Bill recognises the multiple
identities of people by moving away from
focussing on single interest groups and arriving
at the generic idea of "deprived groups".
One may be rich, male and able but may be
discriminated against nonetheless on the grounds
of being Muslim. Again, a Dalit lesbian woman
carries several depriving identities, the
totality of which cannot be captured by a
single-issue-oriented law. This design is not
only morally better but also has a more universal
appeal - with the rich and complex diversity of
human identities, most of us are more likely to
see ourselves as potential victims of
illegitimate discrimination rather than as
perpetual non-beneficiaries. This generates the
hope of greater possibility of empathy with
victims of discrimination rather than with
empathy-failure caused by divisions between "us"
and "them".
Indirect discrimination
RAJEEV BHATT [Photo]
At a protest against the non-inclusion of Dalit
Christians and Muslims in the Scheduled Castes
list, in New Delhi on March 14. Identification of
groups that are seen to deserve protection
against discrimination depends on the
socio-political and moral context of a given time.
The EOC Bill seeks to prohibit not just direct
(or intentional) discrimination but also
"indirect" discrimination (clause 2(k)). Although
the concept of indirect discrimination is well
established in countries such as the United
Kingdom, the United States (where it is called
"disparate impact"), South Africa and Canada, it
has been introduced into the Indian discourse for
the first time.
The Menon Committee report explains that indirect
discrimination is an unintentional or unconscious
act that results in systematically disadvantaging
a deprived group (paragraph 2.9). An example
should make the concept clear. Let us take a
housing society that does not discriminate (or
intend to discriminate) on the grounds of
religion or caste. But it has a firm policy of
not selling or renting any accommodation to
non-vegetarians. Here, the intention may not be
to discriminate against certain religious or
caste groups, but the result of the policy has a
disproportionate impact on certain religious and
caste groups. Such a policy will, therefore,
amount to indirect discrimination on the grounds
of religion and caste.
To take another example, an employer does not
intend to discriminate against women but is
worried that pregnancy will result in the
employee taking leave. With this motivation, he
does not hire women of a particular age group.
Now, he discriminates indirectly on the basis of
sex even though there is no intention to do so
because the policy has a disproportionate impact
on women. As already discussed, the EOC Bill
applies to the public sector as well as the
private sector. However, citing resource
limitations and other practical matters, the
Menon report recommends that the initial focus
should only be on the employment and education
sectors, whether public or private (paragraph
4.7).
While this argument has some currency and the
proposed Equal Opportunity Commission should not
be overwhelmed with more work than it can handle,
there is a strong case for including housing in
the priority sectors. Housing discrimination,
especially against Muslims and certain castes, is
rampant, especially in some western states.
Housing decisions are made very few times in an
individual's lifetime and the impact is felt for
a long period of time. From the societal point of
view, housing discrimination creates ghettos
where people only interact with their own kind.
This is certainly bad news for social inclusion.
Now, to the enforcement model envisaged in the
Bill. The proposed Equal Opportunity Commission's
main role will be to research and analyse the
concept of discrimination, to recommend policy,
lobby and advocate reform and to monitor concerns
related to equality. It has some limited powers
of direct enforcement as well, but the report is
clear that grievance redressal shall not be the
primary function of the commission (paragraphs
5.2 and 5.7).
An enforcement model that does not try to deal
with every case of enforcement but rather plans
to create sporadic and spectacular examples of
enforcement with the hope that the effects will
trickle down is not a bad model to start with.
This is India's first comprehensive experiment
with anti-discrimination. It is a good beginning
given the peculiarities of the country,
especially when it comes to enforcement. The
important thing is to recognise it only as a
beginning where lessons should be learnt and
improvements made at a later date.
However, one important flaw in the Bill is that
it gives very little agency to members of the
deprived groups themselves. At the most, they can
complain (as a group) to the proposed commission.
We have seen that except for the constitutional
prohibition on discrimination by the state, all
other models in India suffer from this flaw. A
good remedy will be to give a limited right to
information to citizens against private
employers, educational institutions and housing
societies only on matters related to their
discriminatory policies. This decentralised
method of information gathering should complement
the task of the commission while ensuring that
those discriminated against at least have proper
information before they raise their voice. But,
most important, if the experience of the Right to
Information Act, 2005, is anything to go by, very
often a mere demand of information is sufficient
to remedy the problem at hand. Many private
bodies will be spurred into amending their
discriminatory policies by such demands.
The Bill is on the whole a good idea whose time
has definitely come. Four minor changes may be
considered: (i) including the phrase "fundamental
choice" alongside "beyond their control" as
autonomy-impinging reasons in clause 2(g); (ii)
expanding the list of prohibited grounds in
clause 2(k) to include analogous grounds such as
"sexual orientation, marital status, food
preference, age, dress preference, gender
identity, pregnancy"(iii) expressly including the
housing sector in clause 22(i); and (iv)
providing a limited right to all citizens to
demand discrimination-related information from
public and private bodies.
Tarunabh Khaitan researches on
anti-discrimination law at the University of
Oxford
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