Following is a guest post from Rahela Khorakiwala, who completed her LL.B. from Government Law College, Mumbai and is currently doing her LL.M. at NYU School of Law.
The key concepts of the Equal Opportunity Commission Bill proposed by the Madhav Menon Committee are contained in the terms ‘equality’ and ‘development’. What is equality in this context? Equality here is a legal understanding of the term, as mentioned by the Commission in its Report. However, it is submitted that the concept of equality and inequality goes beyond a mere legalistic analysis. Equality should be understood not as something that can be conferred through an Article in the Constitution. Equality has to come from within society. It is only then that equality, as incorporated in the Constitution, can be truly realised. There is a need to change the societal understanding of the position of a person to make that person an ‘equal’ in society. Thus the question to be asked, when analysing the Bill of 2008, is whether it can truly manage to achieve this objective.
In this regard I have three main observations. One, that the institutional approach adopted by the Bill of 2008, may not be able to achieve the objective of truly guaranteeing equality in the sense that this papers talks of. Two, we need to problematise the notion of equality itself, as understood by the Statement of Objects and Reasons of the Bill, and analyse whether it can achieve this objective. Three, in any event, the Bill of 2008 takes a compartmentalising sector approach, which is problematic.
The institutional approach that the Bill of 2008 takes is a top-down approach as it does not have provisions for the involvement of extra-State actors like civil society. Therefore it is the State that plays the role of deciding what is ‘equal’ and which group of people need to be treated equally. Only the State can decide what equality is and there is no discussion amongst members of civil society or the people who are actually affected by the inequality. This is where the Equal Opportunity Commission must differ. It must evolve with the participation and input of civil society members, if it truly wishes to understand the deeply embedded discrimination in our society.
The role of the Commission will be more effective if it integrates the unequals of civil society into mainstream development instead. The Bill of 2008 puts the concepts of ‘equality’ and ‘development’ together. Therefore, the Bill suggests that in order to achieve equality, all persons must be integrated and assimilated into defined notions of equality and development – the concept of assimilating ‘them’ into ‘our’ perception of development. The question here is, is this a true guarantee of equality? For instance, when Mahatma Gandhi spoke of the caste system, he did not advocate abolishing the caste system, or assimilating the ‘untouchables’ into mainstream society. Instead, he renamed the caste group as Harijans and asserted that they should be treated equally in their present status – without any change. The differences, as he said, should be celebrated and not discriminated against. It is one thing to be different and another to be discriminated on the basis of that difference. The role of the Commission would be to prevent this discrimination as it exists today.
In the case of the Narmada Bachao Andolan, there is a similar issue at hand. The government is willing to rehabilitate the people and provide employment and some form of compensation for their displacement. But that is not what the people want. They want their forest land, for the forest is linked to their culture and identity. Thus for them, equality is not being assimilated into society and being given employment in the development and industrial projects established on their land. Equality for them is being allowed to be different from the mainstream, and not being discriminated against for such difference.
A third perspective on the Bill of 2008 is that it compartmentalises its reach to the fields of education and employment, thus taking a sector approach. This paper submits that such an approach is not necessarily beneficial. It channelizes its efforts into a narrow form instead of tackling the larger issue at hand. As per the Statement of Objects and Reasons, the Bill of 2008 should identify the problem areas at large and give recommendations for what can be done to uplift the citizens and integrate them into mainstream society – and modify this need based on the given set of circumstances.
Thus, the Commission needs to analyze the underlying social structure in which inequality is embedded. For example, the caste system is inherently discriminatory and is still strongly practiced across India. Minority discrimination is also rampant. The Commission needs to question these inherently discriminatory actions that create a group of unequals in society.
This can be a challenging task as the Commission is a government body and a large part of discrimination does occur through the government. Therefore, the Commission, being recommendatory in nature, is not bound by the governmental sanctions and restrictions. It has the potential to permeate through this societal structure by creating awareness of this discrimination. Not only will it create awareness, but it will give the unequals in society a voice to express their concerns.
India’s inherent discrimination – the same factors that created the Constitution with caveats to reservation and equal status and opportunity – explicitly illustrates the need for the formation of this Commission. However, it needs to be broader in its understanding of the notion of equality. All the approaches to equality thus far have been strongly legal, and the Commission needs to break away from this and understand the approaches to integration that can tackle these issues. The Commission needs to understand that assimilating unequals into mainstream society in the name of development is not the answer to the problem of discrimination. The Commission needs to integrate those discriminated against by maintaining their unique identities – a task that I believe a Commission of this stature has the potential to achieve.
Further, if the Commission does indeed achieve all its objectives, it still needs to debate on what actually is ‘equality’. Is it assimilation in society? Or is it the integration of different castes? Or does it mean reservation in the public and private sector? Or the widening scope of Article 14? As the Commission caters to unequals, it will soon realise what ‘equality’ means in context and how that largely differs from the basic concept as understood in Article 14.
The Commission needs to work on the recognizing of different identities and facilitate the process of making the marginalized (“them”) into the equals (“us”), while maintaining difference, yet removing discrimination.