An Equal Opportunity Commission that protects only a chosen (albeit highly unequal) few. This contradiction in terms is the considered wisdom of a Group of Ministers (GoM), recently constituted to study the potentially seminal anti-discrimination measure. Only in India, where we excel in bursting forth with good ideas only to rapidly lose the plot, would someone propose an idea as critical as an Equal Opportunity Commission and proceed to kill it at birth with blatant inequality. The GoM has decided that an EOC should exist only for the minorities ( generally seen as a euphemism for Muslims who officially constitute over 70 per cent of the minority population). This decision is bad for Muslims, bad for a secular polity and bad for all other deprived and discriminated groups.
The Sachar Committee, set up to study the social, economic and educational status of Muslims proposed in 2006 an Equal Opportunity Commission to provide a remedy against discrimination. President Pratibha Patil's speech of June 4, 2009 subsequently committed UPA-II to setting it up. In the meantime, in impressively rapid action, a framework for an EOC had already been prepared in February 2008 by an experts group constituted by the Ministry of Minority Affairs. While the framework and the draft bill itself are extremely weak (more on that later), the point here is that it was made clear that an EOC should cover all deprived and discriminated groups.
The GoM's logic is worrisome. One, we are told that since the idea of an EOC emerged from the Sachar report, which looked at Muslims, the EOC must logically confine itself to the ‘minorities'. This is like saying that if suggestions for vital legal reforms emanate from the experience of violence against Christians in Kandhamal, the legal provisions must be applied only to Christians or to Orissa, not to other groups who may suffer mass targeted violence. It is both plain silly and blatantly unfair. The other logic is that an EOC covering discrimination against all groups would overlap with the roles of existing commissions — the National Commission for Minorities (NCM), the National Commission for Women, the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes, etc. Well, by that logic ‘minorities' are covered by the NCM and so an EOC should be a non-starter. But if it is a good idea for the minorities because the existing NCM simply does not fulfil the mandate of providing legal redress for widespread, systemic discrimination, then surely it is a good idea for all.
Media reports tell us that the Ministry of Minority Affairs is reluctantly re-drafting the framework (creating a minorities-only EOC?) for the next session of Parliament. Reluctantly — because from all accounts, Minister for Minority Affairs Salman Khurshid did argue, and rightly so, for an inclusive EOC. But he was clearly in a minority. The damaging political implications of the GoM's decision are too obvious to ignore. If such an EOC comes to life, it will only add arsenal to the spent Hindutva armoury on the “appeasement of minorities” discourse. And UPA-II will rapidly undo all the good UPA-I did on the Muslim front. The targeted empowerment of Muslims through special purpose vehicles, programmes and policies (on which we are doing rather badly at the moment) is absolutely critical, and must be supported. But an EOC exclusively for the minorities must not be.
An EOC, along with appropriate anti-discrimination legislation, is desperately needed across the board to strengthen the social justice agenda. Discrimination at every step, in all walks of life actively thwarts the UPA's stated goal of ‘inclusion'. It prevents Dalits, Muslims, the other minorities, the physically challenged, women and the sexual minorities, among others, from partaking equally of development. It is alarming that in a country where ascriptive identity is the basis for routine discrimination, we have no anti-discrimination legislation or an EOC.
Anti-discrimination legislation and policies must protect against all kinds of discrimination. And must cover multiple spheres of discrimination — in employment (including MNREGS job cards), in education, in giving loans, in allotment of homes, in provision of public services. Other countries, with far fewer endemic, deep-rooted, discriminatory societal norms, often have more than a single anti-discrimination law and multiple mechanisms to protect against a range of discriminations based on gender, race, ethnicity and so on. India, barring the SC/ST Act, which is limited to certain defined “atrocities,” has none. (Even the SC/ST Act, for instance, provides no legal redress to a Dalit who suddenly confronts a ‘houseful' sign at the time of school admission only to have the non-Dalit child next in line skip through the front door, or who performs so well in the interview but still ‘mysteriously' fails to get selected for that job).
This brings us to the next problem with the proposed EOC. The experts group, headed by Professor Madhava Menon, has covered many important bases. It speaks of including all groups, and covering both the public and private sectors. But it has essentially proposed yet another toothless institution. “The EOC should focus on advisory, advocacy, and auditing functions rather than grievance redress,” says the report. Yawn. So, what's the point? This is just another way of saying the EOC will stomp around a whole lot essentially to stand very still. Because it can provide little effective remedy to a victim of discrimination. That is the core problem. The experts group's framework has focussed more on equal opportunity in broad strokes — suggesting research, codes of good practice, institutional audits, advocacy and advisory functions, and less on actually prohibiting discrimination through strong implementation mechanisms. The draft bill has even failed to state the obvious — that ‘discrimination is illegal.' Why? Because, according to the proposed bill “discrimination against any citizen on grounds only of religion, race, caste, sex, or place of birth is expressly forbidden by the Constitution itself. Arbitrariness is against the spirit of equal opportunity. There is therefore no need for a separate anti-discrimination law to afford equal opportunity to citizens …”
Now the Constitution is a wonderful document, and its multiple guarantees give endless hope. But if the mere existence of all the Right to Equality mantras enshrined in the Constitution were enough to determine an equal nation, India would be a paradise. It's not. Since prohibition of discrimination should be at the core of the proposed EOC, it must say so in plain words. Even the Constitution — Article 15 — expressly on the prohibition of discrimination only says, ‘The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them …' It does not refer to private enterprises, or to a range of other ascriptive identities on the basis of which discrimination may take place.
Prohibiting discrimination and creating equal opportunity conditions — both are needed. One without the other will not work. This is India. Discrimination runs deep. So let the nation re-examine the proposed EOC. Revise the draft bill, create strong legal deterrence against discrimination and then do what's right for all our citizens. Give them an anti-discrimination law and an institution that can implement it. We cannot legislate against bias and prejudice in the hearts and minds of people, but we can and we must legislate against discrimination in how the fruits of development are distributed among the citizens.
(Farah Naqvi is a writer and activist working on minority rights and gender rights.)
