THE reports of the Equal Opportunity Commission (EOC) and the Expert Group on Diversity Index (EGDI) seek to extend the state’s methods of discharging its social justice obligations in novel directions. In so far as they are a response to accumulated objections to ‘the reservation policy’, they also represent an attempt to retain legitimacy for the Indian state’s continued efforts at affirmative action.

At the end of its troubling narrative of the many disadvantages facing Indian Muslims, the Sachar Committee Report (SCR) recommended the creation of an EOC ‘to look into the grievances of the deprived groups. … While providing a redressal mechanism for different types of discrimination, this will give a further reassurance to the minorities that any unfair action against them will invite the vigilance of the law.’¹ The SCR also emphasized the ‘urgent need to enhance diversity in living, educational and work spaces… Enhancement of diversity in different spaces should be seen as a larger policy objective.’² The Government of India constituted the EOC and the EGDI in 2007 to deliberate on the appropriate anti-discrimination measures for deprived groups and on the means of enhancing the diversity profile of formal institutions respectively.

 

The EOC addresses the issue of direct and indirect discrimination in opportunity-access that deprived groups face purely as a function of their social circumstances. While the EOC identifies sex, caste, language, religion, disability, age, descent, place of birth, residence, HIV status, and race as possible bases for the deprival of opportunities,³ it leaves the category of ‘deprived group’ open for on-going definition: ‘The EOC should in principle be open to any person who feels disadvantaged, deprived or discriminated against on grounds of belonging to any social group.’⁴

The EOC recommendations will apply to the spheres of education and employment and ‘other areas’, which the government might later see fit.⁵ (Salman Khurshid, the Minister of State for Minority Affairs, recently announced that the EOC Bill would extend to housing too). In a bold move, the EOC wishes its policy prescriptions to apply to both the public and private sectors, where the latter includes any enterprise that functions ‘through delegation, licence or authorization by (sic) State under the laws in force.’⁶ This step, we are told, is necessitated by the shrinking of the state-run public sector and the expansion seen in opportunities in the private sector.⁷

With a view towards fine-tuning the techniques of implementing affirmative action, the EOC argues that group membership not be a sufficient condition for being considered either advantaged or disadvantaged. Instead, it favours the creation of a ‘deprivation index’, which can examine the interaction effects of the various forms of disadvantage within a social group and help identify the individuals most eligible for affirmative action.⁸

 

The EOC’s key tasks are in three main areas: research, advocacy and audit. The EOC recommends serious efforts be made to collect data and profile the mechanisms underlying discrimination in both public and private-run institutions. It is disconcerting that extant social science research in India has not thoroughly investigated the performance of the state’s reservation policies and the practices of institutional discrimination. Therefore, the EOC’s work is likely to generate useful statistical and ethnographic data and analyses on issues of policy performance and macro-institutional discrimination.⁹ Second, the EOC mandates that its agencies help disseminate the collected evidence on inequality and shape public opinion in favour of anti-discrimination. Last, it asks that the state and private enterprises be audited for practices violating the equality of opportunity.¹⁰ The EOC recommends that committees be set up at the national and state levels to implement and monitor the EOC Act.¹¹

 

The EGDI argues that the lack of diversity in an institution’s personnel profile along the dimensions of religious, caste, tribe and gender is sufficient evidence of discrimination. Departing from the practice of creating quotas, they suggest other means for the state to facilitate diversity in educational institutions, employment, health and residential complexes and thereby ensure minority access to these spaces. Offering tax subsidies, grants and other kinds of financial incentives, they contend, is likely to encourage institutions to diversify their hiring policy. Alongside, disincentives in the form of penalties can deter discriminatory practices in institutions. The EGDI’s policy measures will apply to both the state and private-run institutions. The EGDI expects these measures to create a healthy discursive milieu: ‘The diversity-based incentive system, first and foremost, creates awareness. It sets the goal towards which the institutions would work … institutions must try and achieve them gradually.’¹²

The EGDI suggests the creation of a Diversity Index (DI) to help assess the impact of affirmative action policies in the country. The DI will be created through a mathematical calculation of the variables relevant for arriving at optimal diversity criteria, such as the regional scope of an organization’s operation (national, state or district) and its demographic composition, among others. The EGDI also recommends the establishment of a Diversity Commission with offices at the national, state and district levels to monitor and audit the diversity profile of institutions. In addition to help achieve ‘a socially representative opportunity space in various fields of public life,’ the EGDI aims to ‘make sharing of public space more participative’ and ‘make the understanding and celebration of India’s enormous diversity a more permeated cultural attribute in the country.’¹³

 

The EOC and the EGDI reports have been written in the wake of widespread resentment against the state’s policy of reservations for the Scheduled Classes, the Scheduled Tribes and, more recently, the Other Backward Castes. A major presumption behind the encouragement of research on institutional discrimination appears to be that the availability of factual evidence can counter the objection of caste injustice as being a thing of the past and help justify the continued relevance of affirmative action. Further, the recommendation that the interaction effects among the intra-group disadvantages be considered for identifying the most deserving individuals in that group is sensitive to another objection that the elites among the deprived groups corner the benefits of reservation policy. The EGDI report is likely to foster a politics of multiculturalism along with the attendant ills of tokenism and the streamlining of either-or identitarian categories. Still, the diversity criterion is worth pursuing if that means enhanced scope for bettering life-chances for deprived groups.

 

Instead of making analytical space for the possible adverse consequences of India’s neo-liberal policies on minority groups, the two reports identify ‘inclusive growth’ as a desirable policy goal. The severe consequences of contemporary economic policies on the already marginalized, however, generate skepticism towards claims of ‘inclusive growth’. While the EOC argues that affirmative action policies must cover newly emerging disadvantaged groups ‘like displaced persons who may not have been adequately addressed by equality jurisprudence’,¹⁴ and that data enabling the ‘identification of new groups like displaced persons’¹⁵ be collected, it is silent on the necessity of regulating the mechanisms creating the displaced in the first place. A similar silence marks the EGDI’s perception of economic liberalization and privatization as inevitable processes lying outside the purview of state regulation: ‘It is important to point out that as the economy is liberalizing and privatizing, avenues for employment in the public sector have stagnated and in some sectors, even shrunk in recent years.’¹⁶

Since the EOC and the EGDI recommendations are not mandatory, their beneficial consequences remain to be seen. Further, since they strive to regulate interactions only in the formal organizational arena, a large part of Indian society located in the informal sector remains outside their scope. The presence of a huge unorganized labour market in India, i.e., 92 per cent of the workforce, cannot but temper enthusiasm about the welfarist potential of the EOC and EGDI policy recommendations.

Notwithstanding these criticisms, the EOC and EGDI’s suggested innovations in the practices of affirmative action in India should generate wide-ranging debate on the meanings of equality, diversity and discrimination. Although the logistics of implementing them in a country like India will prove difficult and is likely to invite litigation, their potential for inaugurating fresh discussions in formal work and educational settings on issues of discrimination, eliciting remedial efforts from them and generating valuable research data makes them worth pursuing.

 

After noting that Indian Muslims faced three inter-related issues – i.e., issues relating to a stigmatized identity, the lack of security of life and assets, and unequal access to benefits arising from ‘economic development’ – the Sachar Committee admitted that its mandate permitted it to suggest measures for addressing only the last issue.¹⁷ Hence, the EOC and the EGDI. Responsibility for the social security of minorities obliges the Indian state to evolve policy towards the other two issues as well.

 

* Thanks to Roopa Madhav for helpful comments on this essay.

Footnotes:

1. SCR, 2006. A Report on the Social, Economic and Educational Status of the Muslim Community of India, p. 240. Available at http://minorityaffairs.gov.in/newsite/sachar/sachar_comm.pdf

2. Ibid., p. 242.

3. EOCa, 2008. Part 1. Economic Opportunity Commission – What, Why and How. Report of the Expert Group to Examine and Determine the Structure and Function of an Equal Opportunity Commission set up by the Ministry of Minority Affairs, Government of India, February 2008, p. 17. Available at http://minorityaffairs.gov.in/newsite/reports/eoc_wwh/eoc_wwh.pdf

4. Ibid., p. 33.

5. EOCb, 2008. Part 2. Bill. Report of the Expert Group to Examine and Determine the Structure and Function of an Equal Opportunity Commission set up by the Ministry of Minority Affairs, Government of India, February 2008, p. 16. Available at http://minorityaffairs.gov.in/newsite/reports/eoc_wwh/eoc_wwh.pdf

6. Ibid., p. 9.

7. EOCa, 2008, op cit., p. 33.

8. EOCb, 2008, op cit., p. 8.

9. Other bodies like the National Commission for Minorities, the National Commission for Women, the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes and the National Commission for Backward Classes have also collected data on the socio-economic and educational issues confronting caste, tribal and religious minorities and women. It is not clear how the EOC will coordinate its activities with these commissions.

10. EOCa, 2008, op cit., pp. 40-44.

11. Ibid., pp. 54-56.

12. EGDI, 2008. Report of the Expert Group on Diversity Index, 2008, p. 3. Available at http://minorityaffairs.gov.in/newsite/reports/di_expgrp/di_expgrp.pdf

13. Ibid., p. 46. See also, Tarunabh Khaitan, An Open Letter on the EOC Bill (drafted for the Centre for the Study of Social Exclusion, National Law School of India, Bangalore), 2009. Available at http://www.gopetition.com/online/28857.html. Khaitan, a legal scholar, has rightly argued that the proposed EOC and Diversity Commission be merged into one since their mandate shows such a strong overlap. This will make coordination easy, save on organizational costs and avoid duplication of work between the two commissions. He also suggests the drafting of a single bill that integrates the recommendations of both the commissions.

14. EOC, 2008, op cit., p. 20.

15. Ibid., p. 50.

16. EGDI, 2008, op cit., pp. 19-20.

17. SCR, 2006, op cit., pp. 3-4.