Open Letter on the Equal Opportunity Commission Bill

To sign this letter, please click here, or email the Centre for the Study of Social Exclusion. Additional resources (including comparative legislations) are available here.
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22nd June 2009

The Minister for Minority Affairs,
Government of India
Paryavaran Bhavan, CGO Complex, Lodhi Road,
New Delhi 110 003

Respected Sir,
[Re: Equal Opportunity and Diversity]

In her address to Parliament on 4 June 2009, the Hon’ble President promised the constitution of an Equal Opportunity Commission to combat discrimination. We welcome this announcement, and write to you to further the public debate on equality of opportunities.

As you are aware, the Rajinder Sachar Committee’s ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ (2006) recommended the constitution of an Equal Opportunity Commission to look into the grievances of deprived groups, and that the idea of providing incentives for diversity should be explored. Two expert committees under Dr. Madhav Menon and Dr. Amitabh Kundu were constituted to consider these recommendations respectively. The Menon Committee Report (2008) proposed an Equal Opportunity Commission Bill to prohibit discrimination against ‘deprived groups’ defined on certain grounds such as sex, disability, religion, caste, language etc. The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivisation of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.

These recommendations represent a paradigmatic shift in India’s approach to equality. Moving beyond an exclusive focus on reservations, they explore a combination of antidiscrimination and diversity promotion measures to pursue social justice. They also recognise that discrimination takes place on multiple grounds, and that compartmentalising suffering through group-specific measures may spawn politics of resentment and competition. Finally, they transcend the divide between public and private actors and apply equally to all. Yet, the obligations they seek to impose on private actors are no more onerous than those imposed on their counterparts in many liberal democracies.

For these reasons, we laud the recommendations and support the proposed measures for equal opportunities and diversity. However, the draft proposals leave too many unresolved issues for the Commission to sort out in the future. We think that this is a recipe for much litigation. Rights and obligations, insofar as it is possible, should be clearly laid down in the legislation itself. We make the following suggestions towards broadening the public debate on these proposals:

A. Interlinking equal opportunity and diversity:
(i) Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition on discrimination and promotion of diversity is not only wasteful, but may result in counterproductive turf-wars.
(ii) The connection between the ideas is not merely institutional but also conceptual: the ‘diversity gap’ in any establishment should be relevant to (but not determinative of) the adjudication of complaints of discrimination against that establishment.

B. A general duty to reduce inequality:

(iii) The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law, but also any other bodies performing public functions) while framing policy in their respective fields of activity.

C. Scope of protection against discrimination:

(iv) The list of grounds on which discrimination is prohibited in the Menon Committee Report includes ‘sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...’ ground. While we welcome an open-ended list in order to accommodate legitimate demands in the future, other autonomy-infringing grounds like ‘pregnancy, sexual orientation, gender identity, occupation, skin-colour, political opinion, age, membership of trade unions or other associations, number of children, tribe, marital status’ should also be included.
(v) The ‘deprivation index’ should include political, social, cultural and material deprivation, evidenced by inadequate representation of the group in public institutions, violence and hostility faced by its members, prejudice and negative stereotypes prevalent against the group, and its economic, social and educational backwardness.
(vi) The legislation should have a clear statement prohibiting ‘direct discrimination’ or ‘indirect discrimination’ against, and ‘harassment’ or ‘victimisation’ of, any member of a deprived group defined by any of the protected grounds. These terms should be clearly defined. Discrimination based on ‘food preference’, when it has a disproportionate impact on a deprived group, should be expressly provided as an instance of indirect discrimination.
(vii) The legislation should clearly provide that the claimant does not have the onus of proving discriminatory intent.
(viii) Direct discrimination, as a general rule, should not be justifiable. Any exceptions (for example, medium of instruction in schools vis-a-vis language discrimination, or age of majority vis-a-vis age discrimination) should be specifically provided in the statute. Indirect discrimination may be justified only if the impugned measure is a proportionate means of achieving a legitimate objective—mere reasonableness of the measure should not be sufficient. Harassment and victimisation should not be justifiable under any circumstance.
(ix) The sectors in which discrimination is prohibited should not be restricted to employment and education. We agree that a phased introduction of prohibition, as recommended by the Menon Committee Report, may be desirable for reasons of feasibility. However, given the prevalence of discrimination in the housing sector, its exclusion from the immediate scope of the legislation is not warranted.
(x) All public bodies (widely defined to include private bodies performing public functions) and political parties should be required to refrain from discriminating in all their activities.

D. Scope of diversity promotion:

(xi) The ‘diversity index’ proposed in the Kundu Committee Report is sensitive to sex, religion and caste. We suggest that tribe and language should also be valid grounds for formulating a diversity index.
(xii) A clear statutory obligation to reduce diversity gap should be imposed on all public bodies (widely defined to include private bodies performing public functions) and other establishments that contract with governments.
(xiii) Diversity promotion should be a precondition for all government subsidies, grants, contracts etc, not only at the central level, but also at the state and local level. Establishments with narrower diversity gaps should get preferential access to governmental grants etc.
(xiv) Bodies and establishments covered by the two preceding clauses should publish their diversity gaps and their plans to promote diversity. Citizens should also have an enforceable right to this information.
(xv) In case of establishments not covered above, the right to information regarding their diversity gap should nonetheless be available to their employees/ residents/ applicants/ students etc.

E. Enforcement Mechanism:

(xvi) The single Equality Commission should be independent of political interference, but subject to political scrutiny and judicial review, while formulating the deprivation and diversity indices. Bipartisan appointment, involvement of civil society and transparency obligations on the lines of recently constituted bodies such as the Central Information Commission should be considered.
(xvii) Draft deprivation and diversity indices should be published on the Commission’s website and elsewhere for public debate before finalisation. Reasons and evidence for the identification/non-identification of any group as ‘deprived’ should also be publicly available.
(xviii) Relationship with the SC/ST Commission, Backward Classes Commission, Minorities Commission, National Commission for Women, and the National Human Rights Commission should be clearly specified. Emphasis should be on co-ordination and data sharing. The Equality Commission is not based on any single identity and its proposed mandate is distinct from these pre-existing commissions. Yet, it can learn from their experiences—legislation should facilitate this institutional learning.
(xix) The proposed Equality Commission in the Menon Committee Bill has extensive powers for investigation, data gathering, auditing, advocacy and advisory functions. However, the recommendatory nature of the orders and ‘codes of practice’ limits the effectiveness of the Commission. Further, while reliance on voluntary compliance and emphasis on mediated settlements is entirely commendable, it fails to elevate the ‘equal opportunities’ to the status of ‘rights’. The lack of effective enforcement machinery thus, dilutes the larger mandate of the Commission and needs to be remedied at the very outset.
(xx) The scope of membership of Facilitation Centres (provided for in the Menon Committee Bill) should be widened, and its powers and functions should be clarified and strengthened.
(xxi) Section 39 (b) in the Menon Committee Bill elevates the ‘Equal Opportunity Practices Code’ to the level of a “Standing Orders” under the Industrial Disputes Act, thus making it binding and enforceable. However, the single Equality Bill should clarify that the scope of establishments covered by it is wider than that under the Industrial Disputes Act, and should also provide for a mechanism for enforcement of these Codes in establishments that do not fall within the scope of the Industrial Disputes Act.
(xxii) Likewise, the powers to investigate and audit in Sections 23-25 and Section 27, should culminate in effective action in the event of widespread discriminatory practices, or victimisation.
(xxiii) The Menon Committee Report envisages a group-driven complaints model rather than an individual-driven one. We suggest that in addition to group rights, individual victims of discrimination should be given a right to mandatory orders, injunctions, declaratory orders, compensation, reasonable accommodation, protection orders against harassment and against victimisation for making a complaint, and the right to information about the diversity gap in their establishment.
(xxiv) In case of direct discrimination, harassment or victimisation by public bodies, part of the compensation amount should be recovered from the salary of the person(s) responsible for such discrimination, harassment or victimisation.

These measures are too important to be passed in haste and without wider public debate. We hope you will give these suggestions as well as the experience of jurisdictions with comparable legislations (such as South Africa, Canada, the United Kingdom, the European Union and the United States) due consideration and circulate the draft of a single ‘Equality Bill’ for further public debate.
In anticipation,

Yours Sincerely,

CC: The Prime Minister
Government of India

CC: The Minister for Law and Justice
Government of India

(Text drafted by Tarunabh Khaitan for CSSE, NLSIU, with inputs from Roopa Madhav, Kamala Sankaran and Usha Ramanathan)

Law Text Culture
CALL FOR PAPERS
Volume 14, 2010

Law’s Theatrical Presence frame, rhetoric, image, body, appearance

Guest editors: Marett Leiboff and Sophie Nield

This issue of Law Text Culture seeks to explore law through the lens of theatrical and performance theory and to read theatre through the paradigm of law. The ‘theatrical’ of which we speak is not that of words or playtexts, drama or literature, nor is it solely the ‘performative’ as a universal referent to any form of enacted public practice. The field of performance studies has certainly expanded in past decades into social and political analysis, but at the expense of the potentially useful theatrical frame. The revitalised field of theatricality, rather than pivoting around acting, costumes, props and stages, allows us to foreground ideas of frame, the body, appearance, rhetoric, and image as key intersections for understanding the work of the law in producing, shaping and staging justice.

The line between reality (truth, perhaps) and its representation is an energised question in theatre and performance studies currently, and one of the key theoretical perspectives being drawn on is Agamben’s modelling of jurisprudence in relation to the current legal states of exception, public resistance and terror. The relationship of the law and the theatre as twin sites of appearance and representation is, we hope, provocative: the ‘frame’ of the theatre and the ‘being framed’ of the law may speak to each other in useful ways.

Law and theatre more infamously intersect where law is used to regulate and repress. Here, it is law that frames actions, bodies, images and events, through the regulation of events, especially those involved in resistance. How law then responds to these actions is a prime site of contention, in particular where these events are filmed and recorded. A personal decision to frame, film, record and display lives online provides a challenge to law, where the boundary between action as real and action as constructed becomes blurred and confused in the online world. Can delineating actions as ‘theatre’ perhaps be a manoeuvre through which to render some sites as ‘real’ rather than commercial, if issues of copyright infringement or privacy needed to be addressed? Theatre as a practice and as a concept may, we hope, be useful here to the law in providing a means by which boundaries can be set where everyone and everything is engaged in performance.

The places in which courts and tribunals sit are ‘theatrical’: spaces to watch and be watched, where ritual and rhetoric may be used to impress judge and jury; where probable and improbable narratives of events are constructed out of speech acts and stylised dialogue. Theatre theory may, we propose, here be used to uncover the limitations of these narratives. We invite contributions exploring how the work of theatre theory - Brecht and Meyerhold, Grotowski and Artaud, Piscator and Schechner, theatre anthropology and Dario Fo, to name a few - might be drawn upon as a ‘theatrical jurisprudence’.

There are also several real-world contexts in which law and theatrical practice are already working in tandem: the recent spate of ‘tribunal’ plays in the UK which often temporally overlap the already theatricalised legal processes which they seek to reproduce; the involvement of performance scholars in the management of restorative justice; the controversial use of verbatim ‘testimony’ of displaced persons, refugees and victims of war in theatre productions.

In order to explore these, and other, questions, we seek scholarly articles, artworks, reviews, and creative writing from legal and theatre studies scholars and practitioners on topics including, but not limited to:

Performance and restorative justice in indigenous contexts
'Tribunal theatre' and the restaging of public inquiries and war crimes tribunals
Theatricality and politics
Theatrical/legal appearance and representation
Legal orators and rhetoricians
Indigenous law and practice, performance and story telling
Theatre theory as jurisprudence
Melodrama
Theatrical licensing and censorship
Histories of theatrical court cases
The use of theatre in teaching law
Theatre techniques in dispute resolution
All scholarly articles will be subject to independent peer review, while all other submissions (artworks, reviews and creative writing) will be considered by the guest editors in consultation with the Managing Editor of Law Text Culture.

Abstracts/expressions of interest: 30 June 2009

Workshops:
London October 2009
Wollongong December 2009

Deadline for draft articles February 2010
Publication December 2010

For information please contact guest editors:

Marett Leiboff Sophie Nield
marett@uow.edu.au sophie.nield@rhul.ac.uk
Faculty of Law, University of Wollongong
Northfields Avenue
WOLLONGONG NSW 2522 Department of Drama and Theatre
Royal Holloway
University of London

LASSnet Authors: Kamala Sankaran

Announcing Kamala Sankaran's new book
Freedom of Association in India and International Labour Standards
http://www.lexisnexis.in/freedom-of-association-in-india-and-international-labour-standards.htm

LASSNET Authors: Aisha Gill's co-authored volume, forthcoming

Violence Against Women in South Asian Communities
Issues for Policy and Practice
Edited by Ravi K Thiara and Aisha K GillForeword by Professor Liz Kelly CBE
Paperback, ISBN: 978-1-84310-670-8, 234mm x 156mm / 9.25in x 6in, 256pp, October 2009, £25.00, $44.95

http://www.jkp.com/catalogue/book.php/isbn/9781843106708