TO begin with, let’s state the obvious. India is deeply stratified. And it’s not unity in diversity. DAVP (Directorate of Audio-Visual Publicity) posters of smiling stratified people holding hands on 15 August are just those – images. The mandatory national(ist) photo-op conjured up by an imagined future; a future democratic republic whose framework was foisted on us, ready or not, that fateful midnight hour of 1947. Not mirrors of who we really are. Notions of purity and pollution are like oceans dividing ‘us’ and ‘them’, lodged like viruses in the Indian mindscape, and predating the equality mantras (Articles 14, 15, 16, 17, 21…) enshrined in the Constitution by many millennia. These are resilient, adaptive viruses. A quick glance at Bharat Matrimony (on the internet for the genX Indian) will suffice to remind us that huge swathes of our population embraces the prejudice of ascriptive difference, with no apology or embarrassment. Diversity is really just a polite word for difference and hierarchy. For it is an unequal difference.

Sometimes one wonders if we really want it any other way. We revel in our multiple inequalities. Come election time in Bihar and we sit in our TV studios and write our clever columns, salivating at the messy exotica of possible combinations – dalits, mahadalits, backwards, other backwards, Muslims, backward Muslims, dalit Muslim, tribal, upper caste – trying to crack the magician’s code for electoral success. It’s a cynical national sport, and those playing it best are determined that it stays alive.

The fact is that these ascriptive identities determine votes only because they determine inequities of huge proportions. Huge inequity gives rise to desperation – for a TV set, a warm blanket, a scheme, or a loan; sometimes not even that. Sometimes just for desperate, denied dignity; of skewed symbols of upward aspiration – Mayawati’s pastel pink attire, diamonds and birthday cakes. Of elephantine monuments lining the streets of Lucknow – an assertion in brick and mortar of denied subaltern histories. That is how vote banks, all separate but unequal, are nurtured and managed.

 

As a nation we appear to manage inequality without denting it. Manage it the same way we manage corruption. A sop here and a mop there. But the cesspool remains as putrid and the bias as deep. Inequity management systems in India have grown old but strong, and spread roots deep in the ground, like the grand peepal tree of the village. Generations of Indian politicians have been schooled under that tree. What they have learned is traditional patriarchal panchayati raj – where some decide the fate of many. And everybody is kept ‘subjectively satisfied’ in their place by periodic handouts. An ‘equal’ electorate would truly befuddle the Indian politician. How then to politic? Whom to give blankets to? Whom to give quotas to?

We manage inequality in group based silos of protectionism that match and reinforce the silos of our vote bank politics. In this handout-based, vote bank inequity management system of our body politic, those who get short shrift are those who don’t matter electorally – the disabled, women, and sexual minorities, among others. The rest – Dalits, Adivasis, Muslims – are left pitted against each other, with competing claims to the handouts.

What have been our dominant inequity management strategies? Quotas, Commissions and Ministries. Reserved quotas for dalits and adivasis were constitutionally sanctioned – 22.5% seats in public sector jobs, educational institutions, and legislatures. Since then we have expanded it to include 27% quotas for OBCs in public sector jobs and higher education and in some states a handful of Muslims have sneaked in through inclusion in other quota categories. Despite a Supreme Court 50% cap on quotas, several states flout this diktat.

Quota solutions have also been extended to those who don’t matter electorally but whose group based inequities were embarrassingly obvious (these were the bechaaras) and elicited the charitable protection of the patriarchal state. The 1995 Disability Act gave a 3% quota to the disabled in government jobs – much of which remains unfilled.

 

The one significant category that has benefited from some quotas in governance without constituting an identifiable vote bank is women. The 73rd and 74th constitutional amendments in 1992 gave them 33% seats in panchayati raj bodies. But the latest such attempt, in the form of the Women’s Reservations Bill is now hanging fire, ironically because of the same quota politics in which it is conceptually embedded. On the face of it the hurdle is that (Male) OBC and Muslim leaders want a quota within quota, i.e., ‘their’ share of this national pie. But truth be told – they just want to block the bill. When it comes to ‘real’ power-sharing at the level of Parliament and legislatures, the nari is no longer seen as bechaari, and the earlier charitable disposition that gave her the panchayati quota is therefore summarily withdrawn.

While there is no doubt that quotas have made a difference in denting the stranglehold of caste-based inequities, quotas are being strongly resisted in the private sector, and dalits still have a hard time getting loans and finding homes to rent. Despite the SC & ST (Prevention of Atrocities) Act, unspeakable violence as well as everyday forms of discrimination against dalits is a daily occurrence across the country. What does this tell us about social cohesion, reduction of inequity, or about building a more humane nation? About the continuing anger and sense of disenfranchisement of dalits, a group which has directly benefited from quotas for over half a century.

 

Proliferating group-specific ministries is the other way we seek to address group-specific deprivation. The Ministry of Social Justice and Empowerment was bifurcated in 1999 to create the Ministry of Tribal Affairs. And then further lost another ‘group’ (the minorities¹ ) to the Ministry of Minority Affairs, set up in 2006. So today, Mukul Wasnik (a dalit Congressman from Maharashtra) has under his charge policy, planning, and coordination of programmes for the development of scheduled castes, OBCs, and the disabled. For women, there is, of course, the Ministry of Women and Child Development.

The newest claimants to a ministerial berth are the disabled. World Disability Day on December 3rd saw disability rights groups in India raising the demand for a separate ministry. And yes, ministries are useful in targeting and making visible allocation of resources and developing programmes to address group-specific inequity. Mere resource allocation does not, however, correct for bias and prejudice in implementation at lower levels, which is generally where the problem lies. Besides, and this concern was voiced even in 2006 when the Ministry of Minority Affairs was born, it does create yet another ‘separate’ and competing strand in our overall inequity management system. Ministries obviously compete for limited resources for ‘their’ group.

 

From the 1990s we have also inaugurated an era of group-specific commissions to further our stated equity agenda² – each managed by the various group-specific ministries mentioned above.³ Barring the Backward Classes Commission (which is mandated chiefly to examine inclusion and exclusion of citizens from the central backward class lists), the other group-specific commissions have a broad based mandate to promote welfare and equity. Some have individual complaints mechanisms, but armed with little other than recommendatory and advisory powers, they have been less than useful.

Successive governments have treated them shamefully by refusing to debate their reports or take on board their recommendations (the NCST website shows its 2004-5 and 2005-6 reports as ‘still to be tabled before Parliament.’ NCM reports have met a similar fate for several years); and systematically eroding their autonomy by using them as parking lots for party loyalists who must be accommodated somewhere. These are not solutions to inequity.

 

What can get us out of this culture of a zero sum game? Of dividing the pie; of turf battles for equity among the perpetual unequals? Quotas for the historically deprived must be supported, for they give tangible, assured inclusion. But quotas are by definition a zero sum game. Out of a 100 places, there are only a few limited ways it can be divided. Other equality solutions must be allowed to emerge. The group-specific commissions have clearly proved less than useful in battling the myriad forms of discrimination that pervade our system and society. How do we begin to create a unifying lateral movement between various deprived groups? How do we begin to find common ground, and create integrated pressure on an unresponsive system for more equitable distribution of goods and public services, rather than remain mired in separate strands of inequity management?

At the time the Sachar Committee report (on the social, economic and educational status of Muslims) came out, in 2006, the million-dollar question doing the rounds was, ‘Will they recommend quotas?’ Of course they did not. They could not. There was, the nation was repeatedly told, no constitutional sanction for reservations based on religion. While many believe the argument is morally flawed (and in the face of such deprivation the Constitution can be amended as it has been hundreds of time,) that is a debate for another time. The Sachar Committee, unable to reach for the easy quota solution, was forced to think out of the box and it emerged with two good ideas that represent a vital discursive shift – an Equal Opportunity Commission and a Diversity Index.

‘The Committee recommends that an Equal Opportunity Commission (EOC) should be constituted by government to look into the grievances of the deprived groups.’⁴ It further said, ‘There is an 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… The idea of providing certain incentives to a ‘diversity index’ should be explored.’⁵ Both ideas cut across the separate silos of competitive inequity claims; both carry within them kernels of a new equality regime in India. The EOC recommendation extends to ‘deprived groups’, not just Muslims, and the diversity index is by definition inclusive – it proposes integration as a means of reducing discrimination.

 

In 2008 two expert groups set up by the Ministry of Minority Affairs developed these ideas into implementation models, including a legislative framework.⁶ Of the two, the EOC idea actually moved (in part because it had found mention in President Patil’s speech of 4 June 2009, seen as the Common Minimum Programme of UPA II) But even as the MoMA was preparing to bring an EOC legislation to fruition, the Government set up a Group of Ministers (GoM) to examine the proposal. And before the EOC could take flight, it was quickly swatted down by competing claims and turf wars that our inequity management systems have spawned. A close look at the GoM is revealing.

 

The GoM, headed by A.K. Anthony, and comprising a host of ministers decided that an EOC should be set up only for ‘minorities’ (euphemism for Muslims). This was an alarming twist in the tail. Why would such a preposterous recommendation be made? After all, the framework of the EOC being proposed spoke of equal opportunity measures for all deprived groups in both public and private sectors (which has resisted quotas). Media reports tell us that Mukul Wasnik, Kantilal Bhuria and Mallikarjuna Kharge pushed for a truncated EOC. Union Tourism Minister Kumari Selja and WCD Minister Krishna Tirath warned that the GoM’s decision should not dilute the powers of SC/ST commissions.

Why would Krishna Tirath, Minister for Women and Child, seek to deny ‘women’ access to equal opportunity in public and private sector jobs? Why would Mukul Wasnik, Minister for Social Justice and Empowerment, whose constituents (Dalits) admittedly have quotas in public sector jobs, deny them private sector access? Why would Kantilal Bhuria, Minister for Tribal Affairs, deny tribal groups this access? Notably, each of these ministers is either the Dalit or Tribal face of the Congress Party.

Clearly, this was not a decision for inclusive equality. Wasnik, Bhuria, Kharge, Selja, Tirath were in effect seeking to uphold the status quo politics of competing claims (and in this debate Tirath was speaking for ‘dalits’ not for ‘women’). Sadly, but perhaps expectedly, they were supported by other GoM members – Montek Singh Ahluwalia, Kapil Sibal and P. Chidambaram. Salman Khurshid, arguing for an inclusive EOC (along with Moily) was left, quite literally, in the minority.

Those who speak on behalf of groups that have quotas in government jobs, don’t find the EOC idea tempting enough. On the one hand is secure inclusion through quotas; on the other, the uncertain outcome of an EOC that will ‘attempt to stop discrimination’ in the private sector, coupled with the fear that an idea like the EOC will gradually weaken the overall edifice of group-based quotas and politics. Besides an inclusive EOC means turf encroachment – taking away functions from the myriad group specific commissions.

 

But an effective, empowered EOC for minorities can never fly. It will lead to charges of appeasement from the right. And to anger from all groups (including SC/STs) who are denied its benefits. At best, it will be allowed to develop into yet another weak, ghettoized little body talking only to itself. For the moment the matter is stalemated. The stalemate is itself an indicator of just how entrenched our inequity management politics is. And how bumpy the ride ahead is likely to be.

Yet, it’s a journey we must embark upon. And apart from battling the formidable politics of competitive inequity, we also need to hone the alternative vision towards inclusive equality. The EOC Bill proposed by the Menon Committee, which has spawned this debate, while good in principle, is weak in detail. It essentially proposes a host of research, advisory and advocacy functions and of a ‘group complaints’ model, while failing to provide effective remedies for individual discrimination complaints. It speaks 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, and so on.

 

It is also a bit of ‘cart before horse’, in that it does not state anywhere that ‘discrimination is illegal’. It merely cites the constitutional promises of equality and says that there is, therefore, no need to re-state the obvious, i.e., to explicitly prohibit discrimination. What the Menon report fails to note is that the constitutional prohibition of discrimination covers only state actions, not the private sector. And that’s 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 pro-visions of such a law through a prescribed set of definitions, clear rules and procedures – what is discrimination? What will be standard of proof? How will we tackle group discrimination? Individual cases? What will be the remedy?

Indeed such a law may help the existing national commissions that attempt dispute resolution and handle individual complaints of discrimination without any guidelines. Because, as we have said before, notions of ‘discrimination’ or ‘equal opportunity’ are clearly stated in our Constitution.⁷ The group specific commissions, mandated to promote equality within this constitutional framework, have in fact been handling cases of discrimination for years together.

For example, the National Commission for Women has a clear Complaints Registration System. The ‘instruction’ states – ‘The Complaints and Counselling Cell of the commission processes all the complaints whether received orally, written or suo moto under Section 10 of the NCW Act… The complaints received relate to domestic violence, harassment, dowry, torture, desertion, bigamy, rape, refusal to register FIR, cruelty by husband, deprivation, gender discrimination and sexual harassment at work place…’

 

In 2008 the NCW received 13,190 complaints. Certainly some of these must have related to ‘discrimination’. The NCM or the NCSC would have handled greater numbers. The problem 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 by the state – in part because these complaints are handled in separate silos of various commissions, but mostly because in the absence of a common legal, definitional, and procedural framework, they have only lead to ad hoc remedies.

It is absurd that a country like India, where identity based discrimination is the norm rather than an exception, we have only now woken up to even discussing broad anti-discrimination legislation. Even for our constitutionally acknowledged ‘deprived’ groups (SC/ST) we have only managed the SC & ST (Prevention of Atrocities) Act, 1989, which provides no remedies for insidious daily discrimination. Clearly the politics of quotas and commissions have been the conversation stopper. And it’s time to break the impasse.

What we need to talk about is a whole series of affirmative action interventions, an enabling environment, back-end subsidies to institutions which promote weaker sections, codes of conduct, and anti-discrimination laws (covering both public and private sectors) that precede the formation of an EOC. We also need to think of rationalizing the roles and functions of other national commissions and evolve clarity on the institutional relationship between them and a future unified EOC.

 

An anti-discrimination regime can cut across silos of protectionism that mark our inequity management strategies; pushing us forward into an era of denting inequity instead of just managing it. As I have written elsewhere, we cannot legislate against bias in the hearts and minds of people, but we can legislate against bias, prejudice and discrimination in how the fruits of our much touted national growth are distributed among our citizens.

The true test of our coming of age as a democracy will lie in whether or not we can inaugurate an equality regime beyond quotas and commissions; one which forces our diverse deprived groups to seek some common ground; rather than perpetuating inequity through management systems of isolated, competing silos – always separate and always unequal.

 

Footnotes:

1. The minority communities in India include Muslims, Sikhs, Christians, Buddhists and Zoroastrians (Parsis) notified as minority communities under Section 2(c) of the National Commission for Minorities Act, 1992.

2. This discussion does not include other National Commissions like the NHRC and Election Commission in that they are not mandated to look after interests of specific ‘groups’ of citizens.

3. The Ministry of Social Justice and Empowerment controls the National Commission for Scheduled Castes (established under Article 338 of the Constitution), the National Commission for Backward Classes, National Commission for Safai Karamcharis, National Commission for Denotified, Nomadic, and Semi-nomadic Tribes (established in 2005) and also houses the Commissioner for Disabilities, under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Ministry of Tribal Affairs controls the National Commission for Scheduled Tribes (under Article 338-A). NCST and NCSC were one until 2003 when a constitutional amendment created them into two separate entities. The Ministry of Women and Child is the proud helms(wo)man of two commissions – the National Commission for Women and the newest National Commission for Protection of Child Rights, set up in March 2007 under the Commission for Protection of Child Rights Act of Parliament in December 2005. The Ministry of Minority Affairs established in 2006, took over the National Commission for Minorities (earlier located in the Ministry of Social Justice and Empowerment).

4. Sachar Committee report, p. 240.

5. Sachar Committee report, p. 242.

6. The expert group headed by Professor Madhava Menon came out with a report on the EOC including a proposed Bill. The group headed by Professor Amitabh Kundu developed the Diversity Index. While this author is of the view that the two are really part of a single framework of an anti-discrimination regime and legislation and cannot be divided into two separate implementation models, that must remain the subject for another discussion.

7. Article 15 (1): The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 (1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.