Law and Social Sciences Research Network: Open Letter on the Equal Opportunity Commission Bill

6/24/09

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)

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THE IDEA OF LASSnet

The Centre for the Study of Law and Governance at Jawaharlal Nehru University, New Delhi initiated the establishment of the "Law and Social Sciences Research Network" in order to bring together scholars, lawyers and doctoral researchers engaged in research and teaching of issues of law across social sciences in contemporary South Asian contexts. We believed that the critical work that has emerged from different institutional locations and theoretical frameworks has yet to find a common forum which can act as a medium for exchange of ideas, work, materials, pedagogies and aspirations for the way law, regulation and society as objects of research as well as sites of praxis have been envisaged variously. The attempt of this network is to create a forum for academics, researchers, and lawyers to interact with each other to find productive conversations and enhance these into future directions that law and social sciences scholarship in India might mature into.

LASSnet seeks to organise a network conference every 2-3 years to collaborate on specific themes with institutions in South Asia. So far we have organised 4 network conferences in Delhi and Pune in India and one conference in Sri Lanka. Here at LASSnet, we hope to take the idea of publishing a series of volumes on these themes seriously as well as initiating reading groups/work in progress meetings. We also wish to disseminate teaching materials, design syllabi and share pedagogic experiences.

Since 2021, LASSnet anchored at CSLG, JNU, in collaboration with the Centre for Asian Legal Studies (CALS) SOAS, and Centre for Law and Humanities, JGLS has been organizing a regular webinar series involving book discussions, panel discussions and guest lectures. We hope to continue our interactions and engagements as we work to bring together ideas and activities for the future.

We would be delighted if you were to send us names and emails of those you think might want to join this network. We hope that people will also share their work, ideas or relevant announcements, if any, on the network. If you would like to be part of LASSnet, please send your contact details and short bio to lassnet@gmail.com

Watch this space for more!

LAW AND SOCIAL SCIENCES IN SOUTH ASIA

Inaugural Conference

was held on

January 9-11, 2009

at

Centre for the Study of Law and Governance,

Jawaharlal Nehru University

New Delhi, India

We began by noting that law is conventionally taught and practiced, in South Asia (though not only there) by treating it as an autonomous and self-sufficient phenomenon. The doctrinal researchers regard law as autonomous and believe it is capable of giving an account of itself. The law also tends to be narrowly conceived as what judges, legislators, or the police ‘do’ – ignoring the diffuse structures of power and governance, and practices of regulation, normalisation, and biopolitics that penetrate bodies and condition behaviour.

The notion that law is autonomous (legal formalism or legal positivism) has been subjected to sustained challenge over many decades by scholars who draw on social science methodologies, as well as by the law and literature movement, and by activists who constantly challenge the positivist image of law. Broadly conceived, these scholars seek to explain law as a social, anthropological, historical, and economic artefact which should be understood and studied as such. This implies also that we trace the genealogies of categories which inform law, and the images and imaginings of law in contemporary social science theory. All this suggests that the law is not confined to state law or the appellate judiciary. Not only it remains a fact that state law remains inherently plural; it interacts with plural regimes of customariness. We wish to understand how forms of state and non-state law mutually constitute each other and how they relate to different structures of power and techniques of violence.

Methods and techniques drawn from the social sciences are central to understanding the market, legal structures, regulation and statecraft in the era of globalisation. In mapping the field of law and social sciences, we interrogate the place of law and economics in the larger context of the scripting of the transformation of legal and regulatory regimes. We recognise that while regulation has emerged as a field in conversation with the discipline of economics, there is very little work which details the intersection of regulation with law. Moreover, the conversations between regulators and lawyers do not seem to be informed by social science frameworks and methodologies. The Law and Social Sciences Network (LASS) reflects the interests of those scholars who wish to engage with interdisciplinary research on the transformation of legal and regulatory regimes from varying empirical and theoretical viewpoints.

LASS recognises that much scholarship informed by the social sciences in South Asia has been engaged with social movements and forms of activism which have challenged law’s power to deny, censor, hurt, humiliate and kill. The engagement with this politics of hurt has led to many passionate debates about the place of law in our work and in our politics. Yet in South Asia, the research, teaching and practice of law that draws on the social sciences has been relegated to the margins, and radical activist engagement with law devalued by official discourses of judicial reform. LASS invites reflexive engagements from scholars and activists about the relationship between law and social movements.

The Law and Social Sciences Network (LASS) was constituted to map the field of Law and Social Sciences in South Asia. Its objective is to bring together academics, lawyers and researchers engaged in innovative legal research in South Asia which employs social science methodologies. Building on existing conversations, LASS hopes to stimulate the development of further research into the links between knowledge production, techniques of government, and the ever transforming interdependencies of power, law, and resistance. LASS promotes an examination of how law and/or regulation is constituted as an object of study, and an interrogation of the conditions of its truth claims.

LASS may or may not necessarily inhabit the intellectual and political zones of comfort or of distress created by the habitus of postmodern jurisprudence. We invite critical engagement with the global travels of mainstream networks of Law and Economics, Law and Society or Critical Legal Studies, by providing a sustained critique of the fascination of progressive Eurocentric scholarship for South Asian law, economy and society studies.

LASS may equally turn its attention to the precious and precocious critiques of the “dark side of [European] modernity” which rarely attend to the histories of colonization and the Cold War as these have affected South Asia

We remain sensitive to the fact that the very expression ‘South Asia’ embodies forms of epistemic geopolitical imperialism. LASS remains particularly anxious concerning this essentialization of identity and by the same token resists its translation into an “area studies”. Further, it needs saying that some new geopolitics is now in the making. LASS thus calls for an appreciation of the histories of diversity and plurality, within which inescapably new traditions of law/society/humanities tradition of discourse may be further re-imagined. What purchase this may constitute for the tradition of the distinctive European post-Enlightenment critical legal studies tradition is an important thematic inviting further dialogical/discursive fellowships of juristic learning.

These methodological challenges are suggested with a view to inviting their further elaboration. Contributors should be mindful of these methodological concerns as they address issues in the following more specific settings. In particular, papers, panels, and presentations were invited on:

1. CONSTITUTIONALISM, REFORM AND RESISTANCE

· Constitutionalism, rights and regulation. Has the discourse on constitutionalism met new challenges in relation to changing statecraft, international law, or human rights in South Asia? How does regulation intersect with rights discourses? How do pictures of the written and unwritten scripts of constitutional law circulate in different sites of law and life?

· Languages of Power and of Resistance. What literary and visual representations of the law and resistance to law exist in the South Asian region? In what ways, the 'poetics' tend to subvert politics? Herein we signal the problematic of the multiplicity of the official languages and the politics of translation. How does the politics of resistance constitute the fields of law, creativity and collective action? What are the trajectories that turn the public domain inside out and force new sensibilities and new paradigms that foreground a different understanding of “justice”?

· The politics of law and judicial reform. What is the politics of law and judicial reform? How are histories of such reform to be archived and evaluated? How do different forms of representations [such as the media or those emanating from social movements] engage with projects of law reform? Do contemporary engagements with reform and resistance benefit with tracing the genealogy of categories, and discursive shifts which create new forms of subjection and subjectivities?

· Colonial and Postcolonial Imaginations of the Law: The challenges by legal historians and postcolonial theorists in thinking through law and social forms have led to a rich body of literature on law and society in South Asian contexts. We invite contributions interrogating colonial as well as neo-imperial formations of law, governance, and regulation. This panel retains an interest in the contestations on law’s past as these relate to the constitution of the nation-state, and reflections on the impact of history in the reconstitution of law as an object of study.

2. THE BODY, TECHNIQUES OF GOVERNANCE AND REGULATORY POWER

· The practices of governance in relation to environment, health and sexuality. What are the processes of govermentality which sanitise, medicalise or pathologise some forms of life? What form of regulatory power inhabits the constitution of waste and how does it participate in the formation of public aesthetics? How is the body encountered in public or administrative law? Is gender/sexual orientation/disability a site of recognition that allows us to critique the manifold elisions in the body of the law?

· Technology, Life and the Law. The relationship between science, technology, the body and resources are mediated by the state-corporation alliances in a globalised era. What are the ways in which we may interrogate the deployment of technology to control bodies and life forms, and the regulation of both life and technology through law?

· Technosciences, Environment, Risk and Regulation: How have human rights and social movement discourses pursued this relationship? What images of a ‘risk society’ remain constitutionally legitimate? Are these ideas revisited in the context of the environmental contemporary discourses, such as the global discourse on climate change?

3. PROPERTY, LABOUR, DISPLACEMENT

· Property in different domains of law and life. What are the new challenges faced today in thinking through property rights and discourses? What are some new forms of property emerging through new phases of economic reform? What futures one may envisage for agrarian reforms? What kinds if new property stand invested, particularly in relation to the changing regimes of intellectual property rights in South Asia?

· Labour rights, livelihoods and mass displacement of peoples in contemporary contexts of globalisation. What is the relationship between law and regimes of impoverishment in South Asia? In particular, how may globalization affect constitutionally mandated visions of development as most benefiting the worst-off peoples? As concerns worker’s rights, what legacies may we derive from the histories and narratives of working class movements in South Asia? How may we ‘read’ these alongside with the globalization–induced programs aimed at creation of ‘flexible labour markets’?

4. VIOLENCE AND SUFFERING

· Social suffering and political violence. This has multiple dimensions not fully exhausted by the figure of the detainee, torture and disappearance; forms of collective violence and atrocities in everyday and collective contexts; and the modalities of capital punishment and custodial violence have elicited critical research. How is the everyday conceptualised in these contexts? Beyond, and related to this, remains the question of the reproduction of foundational violence of the law. This emerges of course in the context of India-Pakistan partition; yet it also emerges equally fiercely, for example, in Afghanistan, the erstwhile Tibet, and Burma. This conference invites full attention to the postcolonial ‘nacropolitics’ (to deploy here the phrase-regime of Mbembe).

· Terror, Law and Biopolitics: What is the relation between terror, law and bio-politics? Or what would constitute the jurisprudence of emergency or exception in South Asia today? Put another way, we need to explore fully the law-society relationship between the pre and post 9/11 forms of wars of, and wars against ‘terror.’ How may have the South Asian studies tradition, at all, addressed ‘terror?’

· Movements of autonomy and secession: The South Asian experience remains marked by constitutional and ‘extra’-constitutional insurgencies. How has the construction of the political been conceptualized and narrated in law and society studies tradition in the ‘region?’ How does militarization of protest and of governance proceed to reproduce new forms of ‘bare life?’

Instructions for Submission of Papers

The Steering Group particularly welcomed the submission of pre-formed panel proposals. Individual proposals were welcome, as were proposals for full panels. Papers were also considered on any related theme.

500 word abstracts weresubmitted no later than 15th June, 2008. 500 word abstracts were submitted to Pratiksha Baxi at lassnet@gmail.com; abstracts were in Word, WordPerfect, or RTF formats, following this order: author(s), affiliation, email address, title of abstract, body of abstract. We got back to you within 8 weeks. If an abstract was accepted for the conference, a full draft paper was submitted to the conference secretariat and distributed to the discussant and fellow panel members no later than 01 December 2008.

The maximum duration of individual presentations within each panel was 20 minutes. The abstracts are hosted at http://www.lassnet.org/