Equality Commission: A solution to discrimination?

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.

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The demand for an Equality Commission, expressed at a conference organised by the Rashtriya Lok Dal recently, brings to the fore the merits of such an autonomous body, proposed from time to time by academics and activists, to end social discrimination.

Why was the demand for an Equality Commission recently in the news?

On May 29, the Rashtriya Lok Dal ('RLD') organised a social justice conference that marked the 35^th death anniversary of former Prime Minister Chaudhary Charan Singh. During the conference, the demands was made for an Equality Commission by various political parties present at the conference. As a tribute to Singh, former Union Minister Srikant Kumar Jena presented a resolution to set up a social justice or an equal opportunities commission to ensure "targeted affirmative action for those communities that have been left behind", and to analyse caste census data. Jena raised the need to address unemployment, agricultural distress, and a new economic policy to focus on job creation.

Also read: Pervasive discrimination, segregated spaces and the chimerical right to housing

When was an Equality Commission first conceptualised?

On March 9, 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".

In 2008, an expert group, headed by 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 to "effectively implement in policy development, programme implementation and public administration on behalf of the deprived and discriminated groups and for matters related thereto". 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. 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.

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. While the United Progressive Alliance government considered setting up an Equality Commission, the Bill was ignored with the National Democratic Alliance coming to power at the Centre in May 2014. 

How was the functioning of the EOC, proposed by the Menon Committee Report, interpreted?

As per the Menon Committee Report, the EOC would have a grievance redressal function only in a limited and supportive capacity. The report emphasized the positive obligation of the State to control direct and indirect discrimination against minorities and marginalised communities. 

In a letter to the then Union Minority Affairs Minister, the then Prime Minister, Dr. Manmohan Singh and the then Union Minister for Law and Justice in June 2009, legal scholar Dr. Tarunabh Khaitan, pointed out that while the Menon Committee report provided for equal opportunities and diversity, it failed to define and prevent direct and indirect discrimination. Khaitan highlighted that the EOC, under the Menon Committee report, was restricted to explicitly prohibiting discrimination only in the employment and education sectors. 

The EOC, as proposed by the Menon Committee, relied on voluntary compliance and mediated settlements, thus lacking an enforcement mechanism. Khaitan underlined the need for the proposed EOC to provide relief to individual victims of discrimination, in addition to its 'group-driven' model. 

Also Read: How states can lead the fight against discrimination

Can an inclusive Equality Commission provide a solution to pervasive discrimination?

The Anti-Discrimination and Equality Bill, 2016, a Private Member's bill, as advised by Dr. Khaitan and presented by Congress Parliamentarian Shashi Tharoor, aimed to protect every citizen against all forms of social discrimination. It was a step toward reintroducing anti-discrimination legislation. The Bill proposed the constitution of Central and State Equality Commissions toward eliminating discrimination, promoting awareness, assisting aggrieved persons in seeking remedies, issuing guidelines for protection from discrimination from harassment, and submitting annual reports.

As highlighted by Dr. Khaitan, in an interview in 2017, the Bill provides 'symmetric protection', that is, it protects minorities as well as majorities. It focuses on all forms of discrimination, and is not confined to caste, sex or religion. As a move away from the open-ended list covered under the Menon Committee report, Section 3A of the 2016 Bill protects against discrimination in relation to "caste, race, ethnicity, descent, sex, gender identity, pregnancy, sexual orientation, religion and belief, tribe, disability, linguistic identity, HIV status, nationality, marital status, food preference, skin tone, place of residence, place of birth or age".

According to Dr. Khaitan, apart from prohibiting overt or direct discrimination in the form of prejudice or stereotyping, the 2016 Bill covers indirect discrimination, pervasive as "harassment, bullying, segregation, boycott, violence and victimisation". The Bill prohibits discrimination in public as well as private spheres, including by employers, landlords, retailers and service providers. Thus, in addition to protecting the right to equality as an affirmative action, the Bill overtly prohibits discrimination in the areas of housing, education, work, and medical facilities, among other things.

The Centre for Law & Policy Research ('CLPR') introduced an Equality Bill, 2019 as an anti-discrimination bill based on multiple identities, not restrictive in protecting only specific grounds of discrimination. CLPR claimed to fix gaps in previous anti-discrimination Bills by addressing "intersectional, structural and systematic discrimination" against various forms of conduct such as "direct and indirect discrimination, discrimination by association, intersectional discrimination, systemic/structural discrimination, hate speech, harassment, segregation and boycott, victimization and lynching". 

Also read: Recognising Indirect Discrimination: An Ode to Justice D Y Chandrachud

Significantly, certain provisions of the 2019 Bill are dedicated to employment, education, public buildings and public places, healthcare, housing and land. The Bill imposes a significant positive duty on the State and private actors in promoting equality. By including household and domestic workers in the ambit of the Bill, it challenges the compartmentalisation of public and private sectors. Furthermore, as noted by constitutional law scholar and lawyer Gautam Bhatia, the dimension of "structural and systematic discrimination" addresses the limits of personal autonomy, which is bound to raise legal challenges, with the inclusion of the private sector in the ambit of discrimination. 

How can an Equality Commission function as a redressal mechanism? 

In view of constituting an enforcement mechanism, Dr. Shashi Tharoor's Private Member's Bill of 2016, through its Central and State Equality Commissions, aims to create civil liability instead of criminalising acts of discrimination. The Bill protects and compensates the victim, as opposed to punishing the perpetrator of discrimination. It views the Commission as an independent and efficient mechanism that, by its move against criminalisation and the high burden of proof, tackles the problem of "under-enforcement of existing laws". 

The CLPR Bill of 2019 seeks to prevent discrimination and promote equality by establishing Equality Courts. Except in cases of lynching, the Bill aims to provide civil remedies through its Equality Courts. It aims to provide reliefs in the form of declaratory relief, compensation, restraining discriminatory practices, directions to make available opportunities and undo privileges, implement special measures to address discriminatory practices, audit of internal policies, affirmative action, settlement by consent, and interim relief.

Despite constitutional protections in place, why do we need an Equality Commission?

Part III of the Indian Constitution guarantees the fundamental right to equality under Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 16 (equality of opportunity in matters of public employment), and 17 (abolition of untouchability).  

Article 15 prohibits discrimination on the limited grounds of religion, race, caste, sex or place of birth. It, thus, excludes other pervasive forms of discrimination; for instance, sexual orientation, disability, marital status, pregnancy, occupation, and linguistic identity. Although Article 15(2) of the Constitution prohibits discrimination perpetrated by private individuals, few cases are litigated against private discrimination. Most litigation in courts is initiated against discrimination by the State. Furthermore, in the majority of cases, courts have restricted the interpretation of discrimination exclusively to its direct form, excluding other indirect discrimination including harassment, segregation, and victimization. 

Also read: Deterring private discrimination, constitutionally

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.

Apart from the already existing Commissions addressing discrimination, do we need an Equality Commission?

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'. As the RLD national president Jayant Singh Chaudhary stated during the conference, while various committees existed to protect separate rights of Scheduled Castes, Scheduled Tribes, Other Backward Classes and minorities, 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. 

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.