Why India needs a comprehensive anti-discrimination law
While the Constitution provides a vision for equality, for citizens to activate it, we need to give it legislative teeth
In 2006, when the Sachar Committee report (on the social, economic and educational status of Muslims) came out, the million-dollar question doing the rounds was ‘Will they recommend quotas?’ Of course they did not. They could not. The nation was repeatedly told that there was no constitutional sanction for reservations based on religious community. While many believe the argument is morally flawed (and in the face of acute deprivation of Muslims, the Constitution can be amended, as it has been hundreds of times), that is a debate for another article. The Sachar Committee, unable to arrive at the easy quota solution, was forced to think out of the box. It emerged with one idea that represents a vital discursive shift—an EOC: ‘The Committee recommends that an Equal Opportunity Commission should be constituted by the government to look into the grievances of the deprived groups.’
The idea cut across the separate silos of competitive inequity claims, carrying within it kernels of a new equality regime in India. The EOC recommendation of Sachar was pointedly for all ‘deprived groups’, not just Muslims.
In 2008, an expert group set up by the Ministry of Minority Affairs (headed by legal expert late Prof. N.R. Madhava Menon) developed the EOC idea into an implementation model, including a legislative framework. And President Pratibha Patil’s speech of 4 June 2009 committed UPA-II to setting it up.
Unfortunately, the EOC bill proposed by the Menon Committee, while good in principle, was weak in detail. It essentially proposed a host of research, advisory and advocacy functions and a ‘group complaints’ model, while failing to provide effective remedies for individual discrimination complaints. It spoke only of education and employment as sectors to be covered, whereas we need anti-discrimination measures in several arenas—housing, delivery of schemes, public services, as well as in the private sector and covering private bodies.
The proposed EOC was also a bit ‘cart before horse’, in that the bill did not state anywhere that ‘discrimination is illegal’. It merely cited the constitutional promises of equality, and said that there is no need to restate the obvious, that is, to explicitly prohibit discrimination. What the Menon report failed to note was that the constitutional prohibition of discrimination covers only state actions, not the private sector. And that is just not good enough.
Besides, the Constitution provides vision. For citizens to activate it, bring it to life, we need to give it legislative teeth, in the form of a comprehensive anti-discrimination law. An EOC can then implement the provisions of such a law through legal definitions, clear rules and procedures. What is the definition of discrimination, victimization or harassment? What will be the standard of proof in individual cases? How will we tackle group discrimination? What will be the remedy across a range of sectors?
Such a law may help the existing national commissions that attempt dispute resolution, and handle individual complaints of discrimination. Because notions of ‘discrimination’ and ‘equal opportunity’ are clearly stated in our Constitution, the group-specific commissions, mandated to promote equality within a constitutional framework, have been handling cases of discrimination for years together but without any definitional clarity or guidelines—all ad hoc, arbitrary.
For example, during 2017–18, the Complaints and Investigation Cell of the National Commission for Women (NCW) registered 15,381 complaints/cases falling within its mandate.9 These related to a range of issues—bigamy/polygamy, cyber crime, dowry harassment/dowry death, free legal aid for women, police apathy, and many other violations. But, notably, also related to the ‘right to live with dignity’ and ‘gender discrimination including equal right to education, and in work’.10 In the same year, the National Commission for Minorities (NCM) recorded 1498 complaints. The National Commission for Scheduled Castes (NCSC) handled far greater numbers.
The point is that these thousands of complaints, bespeaking huge inequity, have failed to add up to a coherent body of understanding of how the average Indian citizen experiences a range of discriminatory practices. Or how we as a nation can collectively address discrimination. This is chiefly because these complaints are handled in separate silos of various commissions, and in the absence of a common legal, definitional and procedural framework, they have only led to ad hoc remedies. So we have no idea how the NCW, NCM or NCSC even define ‘discrimination’, or what kinds of relief they propose as they ‘dispose of’ these complaints. Only a comprehensive anti-discrimination law can provide that legal coherence.
Edited excerpt from The Minority Conundrum: Living In Majoritarian Times, edited by Tanweer Fazal, published with permission from Penguin Random House India.
FIRST PUBLISHED25.05.2020 | 09:50 AM IST
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