March 2008 
Year 14    No.129
Cover Story


Equal opportunity

Preventing discrimination, promoting equality: India has much to
learn from the UK experience

BY JAVED ANAND

The Sachar Committee report on the "Social, Economic and Educational Status of the Muslim Community of India", tabled before parliament in November 2006, brought into sharp focus the stark reality of India’s largest religious minority. As a community, the country’s 150 million Muslims have been left far behind in the developmental process vis-à-vis other socio-religious communities. The committee rightly observed that such a state of affairs must be seen not as a Muslim but a national problem and made a series of recommendations to address the issue. The appointment of an Equal Opportunities Commission (EOC) was among the most important recommendations.

In its ‘action taken report’ on the Sachar Committee’s findings and recommendations, in September 2007 the union government announced the formation of a five-member committee to advise the government on the route map to the EOC, to which two more members were subsequently co-opted. This seven-member committee submitted a draft bill to the government in mid-February. What exactly has been proposed and what the government decides to do with the proposals as and when it tables a bill on the EOC remains to be seen.

Meanwhile, from past experience civil society actors have learnt the hard way that new laws often lack essential provisions while the agencies created to ensure their implementation often lack teeth. A good example of this is the communal violence (prevention) bill of the UPA government which has had a tortured history and whose future still remains uncertain.

It may be recalled that Citizens for Justice and Peace (CJP), an NGO formed in Mumbai in April 2002 on the initiative of the editors of Communalism Combat, set up a Concerned Citizens Tribunal to probe the Gujarat genocide of 2002. Among its many recommendations to prevent and punish perpetrators of future genocidal acts, the tribunal emphasised the pressing need in the country for a law on mass crimes.

In 2003, Sabrang Communications and CJP jointly organised a two-day consultation in Delhi. After intense deliberations by participants who included retired judges, retired and serving IAS and IPS officers, senior lawyers and social activists, a citizens’ draft bill was prepared. This draft bill, endorsed by nearly 200 civil society groups from across the country, was then submitted for consideration by the UPA government which came to power in May 2004. The enactment of a bill to prevent and punish perpetrators of communal violence formed part of the common minimum programme of the constituents of the UPA.

The first draft of the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005 presented by the union home ministry was sharply criticised by virtually every civil society actor concerned with combating communal hate and violence. The second draft is not much better and has been widely criticised as a "piece of misconceived legislation". Paradoxically, while the main purpose of the bill should be to make the administration and the police more accountable, what it does, in fact, is give them greater powers. The government has so far not responded to persistent demands for a new draft prepared through an open, transparent public process with the active participation of civil society and involving a cross-section of people, eminent jurists, human rights activists, academicians and legal experts in particular.

That is one part of the story. The other part concerns the inadequacy of existing commissions such as the National Human Rights Commission (NHRC) and the National Commission for Minorities (NCM), which have proved to be "toothless tigers" when faced with the challenge of the pogrom in Mumbai in 1992-93 or Gujarat in 2002. Therefore, while welcoming the Sachar Committee’s recommendation for the institution of an equal opportunities commission, social activists have also been clear that the creation of one more "toothless tiger" would be a meaningless exercise.

The Sachar Committee had suggested that the proposed EOC for India could be based on the experience of the UK’s Commission for Racial Equality (CRE), a regulatory body created under the Race Relations Act 1976 to ensure that the intentions of the act were translated into action on the ground. In view of this, Muslims for Secular Democracy invited Kay Hampton, last chair of the CRE (before it was merged along with other anti-discrimination commissions in the UK into the umbrella Commission for Equality and Human Rights on October 1, 2007) to conduct workshops in five cities of India: Mumbai, Delhi, Bangalore, Hyderabad and Lucknow.

Daylong workshops and other interactions were held in each of these cities between October 28 and November 9, 2007. Participants at the workshops and other meetings included political leaders, lawyers and judges, academics, educationists, writers, poets and artists, journalists, businessmen and corporate leaders, community activists, religious leaders and NGOs actively involved in grass roots work. A number of serving and retired senior civil servants and police officers as also sitting and former members of existing national and state commissions for minorities also participated in the workshops.

Across the five cities, around 1,000 people actively engaged in the issue met and interacted with Hampton. In Delhi, deputy chairperson of the Rajya Sabha, K. Rahman Khan, facilitated a meeting with senior parliamentarians from different political parties who were quick to grasp the key features that make the CRE, UK an effective commission. In Hyderabad, Javed Alam and Kalpana Kannabiran, both members of the seven-member committee appointed by the union government to produce a route map for an EOC in India, participated in the workshop and then held a separate meeting with Hampton.

The workshops turned out to be an eye-opener for most participants. As the key features of the Race Relations Act 1976 (amended in 2000 to increase its scope and enforcement powers) and the CRE were detailed and discussed, it became abundantly clear why such a commission "works" and ours don’t. Reproduced below are the main features of the CRE, followed by some responses from participants.

Acknowledging the problem

The first thing that strikes one even on a cursory reading of the Race Relations Act or other literature published by the CRE is an honest, candid admission that there is a real problem – continuing, widespread, institutionalised discrimination – that exists in Britain, which should be unacceptable in any democracy and which the legislature and the executive are now committing themselves to addressing in all earnestness.

Here is an example of what an honest admission of a problem could mean. While releasing the Stephen Lawrence Inquiry report (on the police bias evident in handling the racial murder of a black man) in February 1999, Jack Straw, the then home secretary (equivalent of the home minister in India) said, "I want this report to serve as a watershed in our attitudes to racism. I want it to act as a catalyst for permanent and irrevocable change, not just across our public services but across the whole of society." What followed was a thorough overhaul of the entire police system in the UK.

This is best illustrated through a perusal of the ‘Hate Crime Manual’ of UK’s Association of Chief Police Officers, which sends out a strong and unambiguous message to every police person in the country:

"Hate crime is a most repugnant form of crime... it is essential that members of the police service recognise that they stereotype members of minority communities (as do many other people). By recognising stereotyping, we can overcome bias… The police service must make its stance against racism, homophobia and other group hatred a reality, incident by incident, crime by crime, and in every aspect of the performance of its duty… There is no place in the police service for those who will not uphold and protect the human rights of others" (emphasis added).

It is illegal, an offence, to discriminate

The UK’s Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000, outlaws discrimination whether direct or indirect, in employment, training, education, housing, policing, criminal justice, public appointments and the provision of goods, facilities and services. Harassment and victimisation too are unlawful. In practice, discrimination on the basis of ethnic, religious, linguistic or national background is all considered ‘racial’ discrimination.

All citizens are protected

The act is not meant to protect any particular group of citizens. Discrimination against any citizen is unlawful or illegal. In other words, all citizens are offered protection against discrimination.

(Given the reality of reservations in India, appropriate provisions will need to be made in our context to keep reservations out of the purview of the non-discrimination act.)

Duty to promote race equality

The act places a general duty on a wide range of "public authorities" legally committing them to promote race equality. The general duty means that in all their policies and practices the authorities must have due regard to:

i. Eliminating unlawful racial discrimination;

ii. Promoting equality of opportunity;

iii. Promoting good relations between people of different racial groups.

The over 43,000 institutions listed under the act as public authorities include employers, schools, colleges and universities, landlords and other housing providers, large and small businesses, local authorities, health service providers, government departments, local government, the police and other law enforcement agencies.

It is obligatory for all of them to make race equality a central part of their functions such as planning, policy-making, service delivery, regulation, inspection, enforcement and employment. The authorities are also required to treat the three requirements specified above as ‘complementary’. This means they must consider and deal with all three components of the general duty.

Means to an end

In addition to the general duty, the act empowers the home secretary to issue special orders spelling out specific duties for some or all of the public authorities. The specific duties are a means to attain the end: meeting the general duty obligations. Included among the specific duties is the requirement for each public authority to prepare and make public a race equality scheme and carry out "ethnic monitoring" ("without it an organisation will never know whether its race equality scheme or policy is working").

A race equality scheme must:

Ø list those functions that are likely to affect people differently, depending on their ethnic group;

Ø say how the authority will assess any new policies it is proposing to introduce and how it will consult people, including staff, about them;

Ø say how the authority plans to monitor all its policies and make sure they are not putting people from some ethnic groups at a disadvantage;

Ø publish the results of its consultations, assessments and monitoring;

Ø make sure everyone can obtain information about its activities and services;

Ø train its staff in their responsibilities under the duties; and

Ø review the scheme at least every three years.

In other words, this is an institutional approach to ending institutionalised discrimination.

"The Race Relations Act 1976 protects people from racial discrimination in those areas where they are most vulnerable: for example, the operations of the police and the criminal justice system."

The Sachar Committee’s recommendation for the creation of a national data bank on the socio-economic and educational status of different socio-religious communities would necessitate regular "ethnic monitoring".

To quote from the CRE annual report for 2005: "The best weapon we have to tackle institutional failure or systemic inequality is the statutory duty to promote race equality. It compels over 43,000 public authorities to think about their policies and the way they provide services, affect people from different racial groups. This means putting racial equality at the heart of everything they do whether this involves providing council housing, closing a hospital, opening a school, deciding who shares prison cells or proposing a new law in parliament."

Should the EOC act and the commission appointed under it not think of spelling out a similar regime of statutory general duty and specific duty for all public authorities in India? The NHRC may deal with cases of human rights violations following complaints or even suo motu. But in the absence of statutory requirements to promote equality and accountability being placed on public authorities it can at best deal with isolated cases. Moreover, the NHRC deals with human rights violations per se; it does not address the issue of discrimination.

CRE a statutory body

Created as a statutory body under the Race Relations Act 1976, the CRE is the agency with enforcement powers. The CRE also has the powers to issue statutory and non-statutory codes of practice containing practical guidelines on how public authorities can fulfil the general and specific duties underlined. Significantly, the CRE functions under the UK home secretary but independently of the government. The CRE also reviews the working of the Race Relations Act.

(Initially, the National Commission for Minorities in India also functioned under the union home ministry but was later moved to a less important ministry.)

Professional appointments

Highly qualified professionals are selected to head the CRE through a rigorous and transparent recruitment process (as against political appointments to top positions in the commissions in India) to ensure efficient and fully independent functioning. An active worker, let alone an office-bearer, of any political party is not eligible to apply for the post of chair, deputy chair or commissioner of the CRE.

Even from a cursory glance at the résumés of the chair, deputy chair and commissioners of the CRE, available in its annual reports, it is evident that only highly qualified individuals from diverse professional backgrounds get selected to head the commission. Merit, professionally assessed ability to deliver, is the sole criteria for selection.

Independent investigation machinery

Adequate resources, human and financial, and a fully independent investigation machinery are put at the commission’s disposal to probe cases impartially and professionally.

CRE required to act, not just recommend

The CRE has the mandate to take direct action and issue compliance notices whenever necessary, including to the police and prison authorities. (In India the power of most commissions is limited to making recommendations to the government. In the case of the National Commission for Minorities, for a period of 10 consecutive years its annual report (along with the government’s action taken report, a statutory obligation) was not even tabled before parliament. In effect, this means that no one knows what recommendations the commission has made and what action, if any, the government has taken.

Accountability and transparency

There are systems, procedures and processes in place to ensure accountability and transparency. The CRE is itself subject to regular social audit.

While being inducted to office, office-bearers of the CRE are required to commit themselves to seven principles of governance formulated by the Nolan Committee (appointed to inquire into standards in public life), which are as follows:

Selflessness: Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends.

Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.

Objectivity: In carrying out public business, including making public appointments, awarding contracts or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership: Holders of public office should promote and support these principles by leadership and example.

The duties of the CRE

i. To work towards the elimination of discrimination;

ii. To promote equality of opportunity and good relations between persons of different racial groups generally; and

iii. To keep under review the working of this act and, when they are so required or otherwise think it necessary, draw up and submit to the secretary of state proposals for amending it.

The importance of the last point cannot be overstated. The act not only creates a commission but also empowers it to keep a constant watch and periodically review whether the objects of the act are being well served or whether amendments are needed. The imperative for change whenever needed is built into the race relations legislation itself.

Significantly, the CRE’s task is not limited to wielding the stick: investigating institutions that discriminate, issuing compliance notices, hauling wrongdoers before the courts. Dangling the carrot is part of its job; a lot of its time and effort is spent on promotional work. This being an integral part of its duty, the CRE is obliged to see its role also as a catalyst, constantly engaging, interacting, collaborating with different segments of society – government departments, police authorities, educational authorities, social activists, religious leaders, etc. Given the accountability and transparency criteria to which it too is subject, the CRE functions as a people-friendly institution, not an aloof one with an ivory tower approach.

Not surprisingly, Hampton’s presentations in the five cities where workshops were held evoked a range of emotions – incredulity, incomprehension, cognition, comprehension, dismay.

"Different planets!" was the spontaneous response of writer and social activist Rajni Bakshi at a working dinner in Mumbai where Hampton interacted with a small group of corporate leaders. "Now we know why your commission is effective while ours are toothless paper tigers!" exclaimed a lawyer in Hyderabad.

"Madam, you people are civilised, our situation is different!" a Muslim woman participant at the Mumbai workshop declared. High praise for the ‘West’ from a devout, draped head to toe in a burkha, follower of Islam? Yusuf Muchhala, a senior lawyer who was chairing the session, intervened, "We are actually talking about legislators and governments, not people or civilisations here."

Zaheeruddin Ali Khan, managing editor of Siasat, an influential Urdu daily published from Hyderabad, summed up his assessment of the workshop with the following words: "I have never before in my life sat through a daylong workshop. But Madam (Hampton)’s presentation yesterday was so educative and engaging, there was so much to learn that I sat riveted the whole day."

Basheeruddin Babu Khan, a former minister in the Andhra Pradesh government and a key participant at the workshop in Hyderabad believed "It would be really useful if some members of the seven-member committee appointed by the government visited the UK and gathered as much as possible from the CRE experience."

Most participants readily recognised that the proposed EOC commission in India must address the problem of discrimination against all sections of society and not Muslims alone.

Following Hampton’s hour-long interaction with senior parliamentarians at the Parliament Annexe in New Delhi, CPM politburo member Sitaram Yechury promptly made two suggestions to deputy chairperson of the Rajya Sabha, K. Rahman Khan: a cross-party parliamentary group to be involved in the creation of an effective EOC in India and a parliamentary group to visit the UK soon to learn more about the CRE.

In sum, except for a handful of sceptics, nearly a thousand people – representing more than 100 NGOs, senior parliamentarians, lawyers, educationists, intellectuals, journalists and community and religious leaders – were convinced after the workshops and other meetings that if the proposed EOC in India was to be effective it must in some way incorporate the key features of the CRE outlined above.

At times enthusiasm gave way to dismay as participants questioned whether the Indian political class would ever allow a commission like the CRE to come into existence here. Some said that part of the difficulty in India was that we are a democracy without a liberal culture. Others wondered how an EOC would work in the Indian context, given that we already have existing policies of affirmative action in the form of reservations for scheduled castes and scheduled tribes and for other backward castes. Another question that arose concerned the fate of existing commissions like the NHRC, the NCM, etc once the EOC came into effect. Do we amalgamate all of them into one, as is now happening in the UK, or do we create an EOC in addition to the existing ones? What then would the mandates of the different commissions be?

The answer to the first question was relatively easy. As the same question – "Will our legislators give us a commission like the CRE?" – surfaced in city after city, Hampton explained that things had not been very different in the UK until the early ’70s. The birth of the Race Relations Act 1976, and all that followed, was the result of sustained pressure and protest from those discriminated against. Those denied equal opportunity might need to build similar pressure from below in India as well.

It was this very point that K. Rahman Khan highlighted in his inaugural address at the Delhi workshop. "Unless educated people like us become active and vocal nothing will happen," he said. "But that’s our problem," quipped Zaheeruddin Ali Khan, "After the Gujarat genocide, while secular activists and the media kept the issue of justice alive Muslims here were content to carry on eating their biryani!"

As mentioned at the beginning of this article, the Sachar Committee report emphasised that the problem of 150 million people being left behind in the development process was not just a Muslim problem but a national one. No society can expect to move ahead even as it leaves behind such a large number of its citizens. The proposed Equal Opportunities Commission could be an effective agency to ensure this does not happen. But this will only be possible if we have a commission worth its name. And for this, civil society groups must remain watchful, as they have been in case of the bill on the prevention of communal violence, to ensure that the legislature gives us a commission with teeth. In particular, middle-class Muslims who belong to the community of those discriminated against must think beyond their plate of biryani.

 


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