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Dealing with discrimination

Print edition : May 23, 2008 T+T-
Justice Rajinder Sachar presenting the report of the committee he headed, which studied the Muslim communitys condition in India, to Prime Minister Manmohan Singh in New Delhi on November 17, 2006.-R.V. MOORTHY

Justice Rajinder Sachar presenting the report of the committee he headed, which studied the Muslim communitys condition in India, to Prime Minister Manmohan Singh in New Delhi on November 17, 2006.-R.V. MOORTHY

The Equal Opportunity Commission is an idea whose time has come.

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 Committees 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 persons 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, ones 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 ones 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, ones autonomy is shaped by choices one has made oneself. However, if one is denied a job because of ones sex or caste or sexual orientation, ones 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 employers 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 ones 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 other. 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.

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 individuals 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 Commissions 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 Indias 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.