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India: Cabinet decision to Constitute Equal Opportunity Commission - two steps backwards

by Irfan Engineer, 4 March 2014

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(Secular Perspective, March 1-15, 2014)

“Half a step forward, two steps backwards” would be an appropriate phrase to describe the measures taken by the UPA I & II towards ensuring justice and equality for the marginalized sections, particularly the religious minorities in India. It takes half a step and then seems to lose courage, perhaps fearing the much hyped “backlash” of the “majority community” and takes two steps backwards in penance for having taken half a step in the first place. The UPA misleads the minorities with the ineffective and often counterproductive half a step taken, while the BJP and the RSS blow whistle and go to the town claiming it to be appeasement of minorities and huge “injustice” to the “majority community”. This leaves minorities more vulnerable, insecure demoralized and discriminated than ever before. The latest decision of the Union Cabinet taken on 20th February to constitute an Equal Opportunities Commission (EOC) is yet another example of such an approach.

EOC was one of the recommendations of Sachar Committee Report presented in the Parliament in 2006. A group of experts was constituted under the Chairpersonship of Prof. N R Madhava Menon on 31st August 2007 to examine and determine the structure, scope and functions of an Equal Opportunity Commission. Experts gave their recommendations on 28th February 2008 along with a draft bill on Equal Opportunity Commission after studying similar legislations in other democratic nations and the provisions of Indian Constitution, social reality and jurisprudence. The draft bill provided for constituting EOC which was to be pro-active and autonomous of the government. EOC was to be a body that would develop, gather and publish evidence of discrimination of any group. It was to undertake evidence-based advocacy role involving many functions, including research and data gathering. Besides, the EOC was to undertake monitoring and auditing function in order to assess the impact of laws and policies; it was to have advisory and consultative function for various organs and levels of government, policy intervention function, grievance redressal function. EOC was also to be an equal opportunity watchdog and undertake shaping of public opinion.

In order to discharge these functions, the EOC was to have powers of a civil court for its inquiries and investigations, viz. to issue summons to individuals to appear before the Commission, issue summons for production of documents and things and to examine witnesses on oath; power to give orders and directions to demand information and to inspect records. EOC was also to have powers utilize any officer or agency for its investigation and to provide legal assistance to complainants. The draft bill invested powers with EOC to intervene in any judicial proceedings in which cases of discriminations were being heard. The main function of the EOC would however be to prepare Good Practices Code (GPC) for establishments after consulting all stake holders. The GPC would lay down ground rules and practices for educational institutions, employers and other establishments (e.g. housing societies) that would provide for more transparent procedures and eliminate possibilities of discrimination. The GPC would be like the statutory standing orders which are binding and violations of the same punishable. After two years of implementation of GPC, learning from the experiences of implementation of the GPC and after consulting stakeholders, the EOC would formulate Equal Opportunity Practices Code (EOPC). The EOC would not normally entertain individual complaints of discrimination, however, they could if exceptional circumstances warranted, particularly, when it manifested group dimension. Finally, the EOC would have power to require compliance of equal opportunity practice codes and to take violators to the court.

The salient feature of the draft bill was that EOC’s jurisdiction was not confined to just equal treatment by the state, but it also extended to private enterprises and institutions, including industries and business, if they have denied equal opportunity to the deprived groups, particularly in reference to access to employment, education and such other areas which the appropriate government may decide. Article 14, 15 and 16 of the Constitution mandates equality and equal opportunities only as far as state is concerned. The Constitutional guarantee of equality does not operate on private bodies, organizations or individuals. State apparatus, state run or funded educational institutions and public sector forms hardly 1-2 percent of total employment or educational institutions. With the ideology of privatization, and market driven growth, capacities of public institutions shrunk drastically and so did the space for mandatory equal opportunities. Therefore, the deprived groups experiencing discrimination have no Constitutional guarantee to enforce equal opportunity. The draft EOC bill remedied the situation.

The second important feature was that EOC’s mandate was not confined to any one community defined by religion or language. It extended to all the deprived groups that experienced discrimination could be women, adivasis, dalits, minorities, LGBT community, handicapped persons, HIV AIDS patient, North Easterners or absolutely any deprived group that feels discriminated. Though the SCs and the STs have reservations in educational institutions and Government employment, and some protective measures and affirmative actions, these do not extend to housing (when dalits and adivasis are excluded from buying flats in housing societies) and private institutions, employment and other areas, which forms the large chunk of spaces where discrimination against dalits and adivasis are practiced. EOC bill drafted by the experts extended that protective cover. The Atrocities Act, even assuming its sincere and efficient implementation contrary to experience, protected dalits and adivasis against atrocities and not discrimination which operated subtly but systematically and was difficult to establish in courts.

The Third feature of the EOC bill was that the individual belonging to the deprived group that experienced discrimination by the state had the remedy to approach Constitutional Courts, ie. High courts or Supreme Court and seek writs orders of the court against discrimination. However, the burden of proof was on the individual to prove her case. Those practicing discrimination would cover their tracks with paper work and hide behind technicalities making the task of victim of discrimination difficult. The EOC was mandated to step in, collect evidences on behalf of the discriminated groups and formulate appropriate codes to ensure equal opportunities.

However, the problem area was EOC was not vested with powers to issue binding orders and try the violators for contempt. It was vested with less teeth than it should have been, given equality is absolutely sine qua non of a peaceful and harmonious society, and is also a Constitutional mandate.

The EOC approved by the Cabinet

Now that the Lok Sabha election is only months away, the UPA suddenly woke up to the Sachar Committee’s recommendation of EOC. The minority affairs ministry prepared a cabinet note to put in place an EOC, but one that confines itself to address discrimination against religious minorities. There is no logic why EOC should not address discrimination against other deprived groups. The EOC cannot discriminate amongst the discriminated. Such an EOC is less meaningful and discriminatory inviting the charge of Muslim appeasement. It gives the communal forces a handy tool to demonize Muslims, besides, it does not address the real systemic injustice experienced by the Muslims or other deprived groups.

The major site where discrimination is experienced by the deprived groups, including religious minorities is in private sector, which has not been included in the jurisdiction of the EOC created by the Union Cabinet.

The EOC created is merely an advisory body without any powers to impose penalties. It will be another forum where the victims will keep visiting that they will get justice knowing little that the EOC has no powers to give them justice, it is another forum to give retirement benefits to some retired High Court Judge. We should reject such an EOC which is more like a hook on which hopes of the victims of discrimination will be permanently hanging.

Why EOC is important:

Proponents of Hindutva claim India to be a five thousand year old “nation”. The word nation itself was used and coined in 19th Century. Nation was a political community sharing common language, religion, culture, traditions, customs within a geographical territory and desiring to organize themselves into and be governed by a state. The definition is not comprehensive but a working definition. Though the political boundaries of the territory between river Indus and the seas kept changing, there was one constant - the caste system with its deeply rooted hierarchies. The caste system was suffered and resisted by over 85% of the population. Among the victims of caste system were the women from upper castes. The rigid inequalities were guarded by the social institutions and the state. Dalits, adivasis and women were excluded from enjoying equal rights. Dalits were even forced to stay outside the boundary of their villages. During the British rule, some opportunities opened up for the dalits and women. During the freedom struggle people across caste and region came together to resist the British rule. Caste and gender hierarchies persisted despite the freedom struggle. During the Independence movement, the competition between communal parties for greater share in the colonial doles deepened communal identities and communal discourse. The competition for share in political power was based on stigmatizing the “other” community and spreading hatred against them. The Hindutva followers still continue the tradition of spreading hatred against the minorities and subtly, even against the dalits and adivasis.

Denial of equal opportunities to dalits and adivasis is as rampant with some changes. Untouchability in various forms is still practiced and dalits and adivasis are excluded from leadership in social and religious institutions. India can survive as nation only if its citizens learn to embrace diversity and pluralism on the Constitutional principle of equality – Equality for all. Equal Opportunity Commission with effective powers and resources could be an important instrument to ensure diversity as well as equality. If we want democracy to survive, we should struggle to have one through instruments that make state accountable.