TOPIC : CAN AN INCLUSIVE EQUALITY COMMISSION PROVIDE A SOLUTION TO PERVASIVE DISCRIMINATION

THE CONTEXT: On 29 May 2022, the Rashtriya Lok Dal (‘RLD’) organised a social justice conference that marked the 35th death anniversary of former Prime Minister Chaudhary Charan Singh. During the conference, the demand was made for an Equality Commission by various political parties present at the conference. At present, there is no comprehensive anti-discrimination law covering the entire country. The constitutional provisions generally view discrimination from a state-citizen perspective. But this approach does not take into account the discriminatory actions of private individuals. This article analyses the merits of such an inclusive body.

HISTORY OF EQUALITY COMMISSION DEMANDS IN INDIA

SACHAR COMMITTEE REPORT

In 2005, then Prime Minister Manmohan Singh constituted a High-Level Committee to prepare a report on the social, economic, and educational status of the Muslim community of India.
The seven-member committee was chaired by former Chief Justice of the Delhi High Court, Justice Rajinder Sachar, and it submitted its final report in November 2006.
In its observations on the ‘development deficit’ among Muslims, the Sachar Committee Report recommended the setting up of an Equal Opportunity Commission (‘EOC’) to “look into grievances of all deprived groups”.

MENON COMMITTEE REPORT

In 2008, an expert group, headed by a civil servant, lawyer and legal educator Prof. N.R. Madhava Menon was set up by the Union Ministry of Minority Affairs to implement the EOC model, including developing a legislative framework.
The Menon Committee Report recommended the structure, scope, and functions of the proposed EOC, and advised on an appropriate legislative foundation for its implementation.
It proposed an Equal Opportunity Commission Bill, 2008 to constitute an EOC.
The Bill aimed to address discrimination or any distinction, exclusion, or restriction made on the basis of sex, caste, language, religion, descent, place of birth, residence, disability, descent, place of birth, residence, race, or any other unjustified criteria.
The EOC, as conceptualised by the Sachar Committee and developed into an implementation model by the Menon Committee, represented a Commission to supplement reservations.

Ø Reservations or ‘removal of disabilities’, as the Menon Committee Report observed, do not warrant equality of opportunities. Hence, the EOC was meant for the deprived groups to access their rights and entitlements, and to address inter-group inequalities, as a move beyond the existing policies on reservations.

Ø The Equal Opportunity Commission Bill, 2008, as prepared by the Menon Committee, was approved by the Union Cabinet in February 2014, with the mandate of ensuring no minority community (restricting its ambit from a broader ‘deprived groups’) is discriminated on grounds of religion and redressing complaints therewith. However, the bill has been ignored since then.

RATIONALE BEHIND THE DEMANDS OF EQUALITY COMMISSION

Though Equality is a foundational value of our Republic, stark inequalities mark our present social reality and prospects for the future generations. Inter-group inequalities often coincide with boundaries of communities and are becoming more visible than before which suggests that there is an urgent need to address these inequalities and supplement the existing policies of reservations by fine tuning the definition of the beneficiaries, expanding the range of modalities and evolving a forward looking and integral approach to affirmative action and for this reason we need an Equal Opportunity Commission. The setting up of an Equal Opportunity Commission (EOC), sooner than later, will be a significant step towards fulfilling the Constitutional promise of equality in its different dimensions.
Existing modalities for dealing with problems of unequal opportunity, disproportionate deprivation and various forms of discrimination are in urgent need of rethinking for three main reasons:
our methods of diagnosing the problem need to become more sophisticated;
the range of proposed solutions needs to be expanded; and
an integrated, forward looking strategy needs to be formulated for tackling the many different kinds of problems associated with inequality of opportunity in a systematic and phased manner.

MANDATE OF EQUALITY COMMISSION

In defining the scope of the proposed EOC there is a need to balance two kinds of considerations.
On the one hand the very idea of an Equal Opportunity Commission demands that the commission should be able to address and redress any and every form of inequality of opportunity, cutting across domains, groups and sectors.
On the other hand, care has to be taken to ensure that the new Commission does not duplicate the work already being done by pre-existing commissions and is not overwhelmed by the number of cases that it has to address. Hence it is imperative that the jurisdiction of the EOC should be wide-ranging in terms of the sectors and social groups, but it should be delimited in terms of the domains as well as the nature of complaints that it can take up.
The opportunity offered by the setting up of the EOC must not be restricted only to SCs, STs, OBCs, minorities, persons with disabilities or to any other set of pre-defined groups. The EOC should in principle be open to any person who feels disadvantaged, deprived or discriminated against on grounds of belonging to any social group. Thus the jurisdiction of the Commission should extend to all “deprived groups” who have been denied or who claim to have been denied equal opportunities.

EQUALITY COMMISSION IN THE CONTEXT OF GLOBALISATION

The rapid growth of global markets has not seen the parallel development of social and economic institutions to ensure balanced, inclusive and sustainable growth.
For many, globalisation — the intensified cross-border exchange of goods, services, capital, technology, ideas, information, legal systems, and people — is both desirable and irreversible, having underwritten a rising standard of living throughout the world. Others recoil from globalisation as they feel it is the soft underbelly of corporate imperialism that plunders and profiteers on the back of rampant consumerism.
There is a growing divergence in income levels between countries and peoples, with widening inequality among and within nations. Assets and incomes are more concentrated. Wage shares have fallen. Profit shares have risen. Capital mobility alongside labour immobility has also reduced the bargaining power of marginalised in many ways hence, it becomes imperative to have an Equality Commission to arrest the dark side of the globalisation.
Globalisation has also let loose the forces of “uncivil society” and accelerated the transnational flows of terrorism, human and drug trafficking, organised crime, piracy, and pandemic diseases as we have already seen the plight of migrant labours (loss of livelihood), other marginalised sections (health, education, sanitation etc).

IDEA OF EQUAL OPPORTUNITY AND POLITICS

Relevance of equal opportunity rests on two foundations.
First, it rests on a semantic foundation. The rise of the concept of equal opportunity is accompanied by the fall of the idea of equal outcome, an idea that was strongly associated with the traditional welfare state that tried to create social equality through compensation. In contrast to equal outcome, equal opportunity presupposes that value is only produced to the extent that individuals actively pursue their opportunities.
Second, it also rests on a social-structural foundation. At least since the 1970s, the political systems of Western welfare states had to find new solutions in the face of an ever-growing social pressure wherein the claims to welfare resources from social groups that had succeeded in being defined as “underprivileged” or even “marginalised” have grown. In all cases, such claims were justified by drawing on the value of social equality.
In India also such demands for equality commission can be seen in the light of the growing pressure from all sections of the society on the government to adhere in letter and spirit to the constitutional ideals of equality and justice.

WHAT IS AN ANTI-DISCRIMINATION LAW?

Discrimination means unfair treatment due to a person’s race, caste, religion, gender or other identity markers. Thus, an anti-discrimination law or non-discrimination law or equality law (here and after “law”) means legislation aimed at preventing discrimination against people based on their personal characteristics. The pith and substance of these laws are twofold.

One is the vesting of the right against discrimination on the basis of protected characteristics such as race, religion, ethnicity, sexual orientation, and gender, among others.
The second is the imposition of civil liabilities on persons for engaging in unlawful discrimination.

Such laws concretise or give substance to the notion of equality mentioned in the Constitution without which the rights given therein will remain a myth.

Ø Thus, the philosophy of the law is to bring an egalitarian society in its widest sense and purpose of the term by establishing a comprehensive anti-discriminatory legal-institutional ecosystem.

NEED FOR AN EQUALITY COMMISSION IN INDIA

STRUCTURAL DISCRIMINATION

More than 70 years after Independence, our society remains rife with structural discrimination. These prejudices pervade every aspect of life, from access to basic goods, education and employment etc.
Cases of discrimination continue to be witnessed. They are frequently directed against Dalits, Muslims, Women, Persons of different sexual orientations, ‘Hijras’, persons with disabilities, persons from the North-Eastern States, unmarried couples and non-vegetarians, among others.
Mob lynching, hate speech, communal polarization, etc are the results of such discriminatory practices.
Today there are multiple sources of discrimination that go beyond what is provided in the Constitution.

DISCRIMINATION BY INDIVIDUALS

The Right to Equality under the Constitution prevents the state from discriminating against persons on various grounds. But it is silent on the discrimination practised by private individuals and organisation although Art 15(2) and 17 deal with this aspect but their enforceability and effectiveness has been poor (Art 15 (2) prohibits discrimination on religion, race, caste etc from accessing shops, hotels, places of public entertainment, wells, tanks etc.)
There is no legal recourse in India if citizens have been discriminated against by private entities such as service providers, landlords, housing societies, employers, educational institutions, retailers etc.
The law would provide the right direction towards positive duties of every organisation to make such policies, which make diversification and anti-discrimination mandatory.

GROWING PUBLIC DEMAND

Beginning from the Sachar committee’s recommendation for such a law, there have been a few efforts in recent times. Shashi Tharoor introduced a private member’s bill in 2017, while the Centre for Law & Policy Research drafted and released an Equality Bill in 2019.
In mid-2021, many state governments brought draft anti-discriminatory bills to deal with the problems of discrimination faced by people.
Most recently in May 2022, a Social Justice Conference organised to mark the 35th death anniversary of former Prime Minister Chaudhary Charan Singh attended by various political parties also made demands for an Equality Commission.
These attempts recognise that our civil liberties are just as capable of being threatened by acts of private individuals as they are by the state.

EXISTING LAWS ARE NOT ENOUGH

The existing laws cover only the major areas of discrimination, like untouchability, sexual harassment at the workplace etc.
The questions of many vulnerable groups remain unanswered. For example, why are some minorities or homosexuals not taken as workers by private landowners? Why does a discriminatory mindset exist regarding someone’s marital status, disability, sexuality, or food habits?

JUDICIAL LIMITATIONS

Since only the High Courts and the Supreme Court have the power to address violations of constitutional rights, approaching these courts for every instance of discrimination is hardly a feasible choice. Moreover, the judiciary continues to be overburdened with a considerable backlog of cases.
Thus, local enforcement mechanisms, in the form of equality commissions, fit the bill.

EMPIRICAL EVIDENCE

We encounter so many situations every day where someone is refused accommodation because he is a Dalit, a Muslim or a Homosexual. NGOs, housing societies, schools, colleges, hospitals, no such institution is completely free from this evil. Even sports are not immune from this problem as a famous Indian cricketer pointed out how players from the south faced racial discrimination while playing in the north.
During the Covid 19, Sex workers and healthcare workers have been facing stigma and harassment for being carriers of the virus. In Pune, 22 members of staff of a multi-speciality hospital were forced to vacate their accommodation as they had treated a Covid-19-positive and were thought to be infected. Nurses working at Victoria Hospital in Bengaluru were evicted from their paying guest accommodations based on the perception that they are infected with the coronavirus.

HUMAN RIGHTS AND SDGS

The UN Human Rights Council’s Universal Periodic Review of India in 2017 has commended that India needs to strengthen its national framework to reduce all kinds of discrimination and promote and protect the human rights of all its citizens in an inclusive manner, to fulfil the Sustainable Development Goal 10 of reducing inequality and discrimination.

GLOBAL EXAMPLES

SOUTH AFRICA

In South Africa, for example, a constitutional guarantee is augmented by an all-encompassing law that prohibits unfair discrimination not only by the government but also by private organisations and individuals. India is unique among democracies in that a constitutional right to equality is not supported by comprehensive legislation.

GREAT BRITAIN ( ENGLAND, SCOTLAND AND WALES)

The Equality and Human Rights Commission (EHRC) is Great Britain’s national equality body. As a statutory non-departmental public body established by the Equality Act 2006, the Commission operates independently. The Equality and Human Rights Commission (EHRC) monitors human rights, protecting equality across 9 grounds – age, disability, sex, race, religion and belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment.

USA

The US Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, colour, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age. The US Equal Employment Opportunity Commission (EEOC) is a bipartisan Commission comprised of five presidentially appointed members.
It enforces the “Notification and Federal Employee Antidiscrimination and Retaliation Act (No FEAR) 2002” which aims to ensure that all Federal employees feel free to come forward with allegations of discrimination, wrongdoing, or misconduct, by making sure that Federal employees are aware of their rights.
This law aims to increase the accountability of federal agencies for acts of discrimination and reprisal. This protection covers the full spectrum of employment decisions, including recruitment, selections, terminations, and other decisions concerning terms and conditions of employment.
The EEOC also enforces the Civil Rights Act 1964, the Equal Pay Act, and The Age Discrimination in Employment Act of 1967, among others.

GOVERNMENT RESPONSE TO DEMANDS OF EQUALITY COMMISSION

Even after the recommendations given by the Sachar Committee Report (2006) and Menon Committee Report (2008), the then government did not expedite the legislative process of enacting an anti-discrimination law.
The Union Cabinet belatedly approved setting up an Equal Opportunity Commission in February 2014. However, a few weeks later with the change in Government post the Lok Sabha elections, the Bill was more or less ignored.
The Private Member Bill of Dr Tharoor (2016) also lapsed after the dissolution of the 16th Lok Sabha.
The proposed Kerala Anti-Discrimination and Equality Bill, 2021 is a great step in the right direction and can be a textbook example to learn for other states.

THE ANALYSIS:

Commissions like the National Commissions for Women, Minorities, Scheduled Castes, Scheduled Tribes and Backward Classes, among others, exist to deal with and handle thousands of cases of discrimination each year. Notably, these individual commissions focus on protecting the rights of specific communities against specific discrimination. The National Commission for Women, for instance, deals with issues like cybercrime, dowry deaths, police apathy, gender discrimination in education and work, and other forms of discrimination against women. While these Commissions handle complaints against inequalities, they do not provide an umbrella view of the discrimination witnessed in the country. Each of the Commissions operates with a different understanding of the term ‘discrimination’.
While various committees existed to protect separate rights of Scheduled Castes, Scheduled Tribes, Other Backward Classes and minorities, it is also felt that there is a need for an Equality Commission to enable the communities to unite. An entity like the Equality Commission, which is based on multiple identities and discrimination, can benefit from the complaints handled by the other Commissions. An Equality Commission can pose as a comprehensive mechanism that covers all forms of discrimination, as opposed to commissions that focus on caste, religion, or sex alone. However, it is imperative that the shortcomings of the proposed EOC under the Menon Commission be addressed so that the functions of an Equality Commission do not overlap with the already existing Commissions dealing with varied forms of discrimination.

THE WAY FORWARD:

Leadership by states: State legislations are contributing to the discourse on anti-discrimination law. In 2021, seven states like Kerala, Tamil Nadu, Rajasthan, West Bengal etc have come out with draft bills on this subject. The Centre can take a leaf out of this and make a comprehensive law and establish an Equal Opportunity Commission. This is vital as the states cannot legislate on subjects in Union List.
Ensuring effective implementation of existing laws: There are few laws and IPC provisions dealing with anti-discrimination in India. For instance, Equal Remuneration Act, of 1976 – Guarantees equal pay for equal work to men and women. Indian Penal Code, 1860 (Section 153 A)- Criminalises the use of language that promotes discrimination or violence against people on the basis of race, caste, sex, place of birth, religion, gender identity, sexual orientation or any other category. Mental Healthcare Act, 2017 – Prohibits the denial or refusal to access mental healthcare facilities or services for people on the basis of race, caste, religion, place of birth, sex, gender identity, sexual orientation, disability or any other category. Awareness of these and such other laws need to be generated through effective public communication and the administration needs to be sensitised and trained in their implementation.
Fundamental changes in the socialisation process: Discrimination is as much a social problem as it is legal. A law may not solve the discrimination unless the social mores changes which must discard discrimination. The family, school and the community need to play a major role in creating a social system without discrimination.
Constitutional morality and judicial intervention: The judiciary has employed the concept of constitutional morality to end many discriminatory practices in Indian society including those based on sex, gender, etc. The apex court needs to nudge or persuade the representative institutions through “judicial dialogue” to facilitate the process of ending discrimination either overt or covert. Also, it needs to revisit the judgment of Zoroastrian Cooperative Society 2005 which privileged freedom to associate over the right to equality.
Interlinking equal opportunity and diversity: Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition of discrimination and promotion of diversity are not only wasteful but may result in counterproductive turf wars.
A general duty to reduce inequality: The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law but also any other bodies performing public functions) while framing policy in their respective fields of activity.

THE CONCLUSION:

A coherent anti-discrimination or Equality Commission is, however, ineffective without the backing of a single, comprehensive anti-discrimination or equality law. While such legislation has been proposed time and again, it is now up to the government to adopt a singular equality law. The Private Member’s Bill of 2016 lapsed, with the government not showing any interest in adopting it. In view of the recent upsurge in violence against minority communities in India, such legislation acquires significance.

MAINS PRACTICE QUESTIONS:

Anti-discrimination law is not a panacea for the problems of inequality and social prejudice that are deeply rooted in our society. Comment.
A comprehensive anti-discrimination legal framework is required to fill the existing legal lacunae in India. Elucidate.