Equality of Opportunity and the Indian Context

Professor A. R. Momin

Many multiethnic democracies across the world are faced with a paradoxical situation. On the one hand, their constitutional ethos and norms espouse lofty ideals such as freedom, equality, justice and human rights. On the other hand, the social structure reflects wide inequalities of wealth, power and resources, violations of human rights, and the exclusion and stigmatization of ethnic minorities and other vulnerable sections of society. All Western states, for example, are avowedly committed to the ideals of equality, non-discrimination and human rights. However, institutionalised racism, xenophobia and discrimination against ethnic and religious minorities are widely prevalent in many Western societies.

France, for example, swears by the republican ideals of liberty, equality and fraternity. In reality, however, French society is markedly differentiated in terms of class, ethnicity and religion. Immigrants, including their descendants born and raised in the country, are considered as the Other and are often targets of discrimination and stigmatization. For nearly three decades Britain has espoused fairly accommodative multicultural policies, but the ghost of racism and xenophobia continues to haunt British society. A recent report of the Commission for Racial Equality pointed out that Britain continues to be racially divided and that the country remains a place of “inequality, exclusion and isolation”.

Realising the wide prevalence of racial and ethnic discrimination and the inadequacy of existing constitutional and legal provisions to effectively deal with it, several countries have set up autonomous legal institutions and instruments to combat this insidious problem. Britain, for example, has established the Equality and Human Rights Commission while the US has the Equal Opportunity Agency. The Netherlands has set up, for the same purpose, Committee for Equal Treatment while Germany has passed the Anti-Discrimination Law. These institutions have played a significant role in translating the ideal of equality into reality and in mitigating the incidence of racial and religious discrimination.

It is a truism to say that Indian society is characterised by extensive ethnic, religious, linguistic and cultural diversities. The important point is that the country’s characteristic diversity should be reflected in the institutions of the state—Parliament and state legislatures, government, judiciary, bureaucracy, police and the armed forces, educational and professional institutions and public and private sectors. It is equally important that these institutions function in a transparent, non-partisan manner. Some scholars have suggested that the government needs to launch a “diversity charter” in order to ensure and monitor fair representation for all sections of society in public institutions.

Though India is poised to make great strides in the economic and technological fields, the social and political scenario appears to be rather gloomy. There is a growing tendency, on the part of powerful individuals, political parties and state administration, to flout and subvert constitutional norms and to defy the rule of law with impunity. Large numbers of people among the minorities, Dalits, tribals and other marginalised sections of society continue to bear the brunt of exclusion, discrimination and stigmatization.

In this context, the idea of an Equal Opportunity Commission, as mooted by Prime Minister Manmohan Singh on 18 March 2008, assumes greater relevance and significance. If the proposed commission is vested with autonomy and wide statutory powers, it can play a highly effective role in combating discrimination and thereby infusing vitality and vigour into the constitutional ideal of equality. The brief of the proposed commission should cover not only complaints of discrimination filed by individuals, groups and institutions but also the institutions of the state which may be guilty of such violations of human rights. The state administration and the police and para-military forces often connive at the violation of human rights by vested interests or, worse still, indulge in practices that are grossly partisan and discriminatory.

The rule of law, which is a cardinal tenet of the constitution and of democratic governance, needs to be made an inviolable and enforceable principle in public life. This can be achieved by ensuring that any expression of defiance and violation of constitutional and legal provisions will invite prompt and stern punitive action by the state. Fear of expeditious punitive action will greatly help in curbing hate speech and the vilification of minorities and other vulnerable sections of society. This has been achieved, to some extent, in the case of Dalits and tribals. In 1976 and 1989 Parliament passed legislations that have made the denigration and vilification of Dalits and tribals a cognisable offence. The scope of such anti-discrimination and anti-vilification measures needs to be expanded. The proposed Equal Opportunity Commission can make an important contribution to this area.

Equality of opportunity essentially connotes that every individual and all sections of society should have equal and unhampered access to the existing opportunity structure and that no citizen of the country should experience exclusion or discrimination on grounds of ethnicity, religion, caste or class. The proposed commission should therefore focus on dealing with the incidence of discrimination, which leads to the exclusion of certain individuals and groups from the existing pool of opportunities on grounds of ethnicity, religion or caste. This necessitates the adoption of a comprehensive approach and methodology. The commission may profitably draw upon the experiences of countries where similar legal institutions exist. The commission may sponsor researches and surveys to identify areas where widespread discrimination exists. Incidentally, Britain’s Home Office has recently funded a research project to determine the extent of racial and religious discrimination in the country.

The proposed commission should also function as a watch-dog or monitoring agency, like the European Union’s Fundamental Rights Agency. The commission should work in tandem with the National Human Rights Commission as well as the National Minorities Commission. The Right to Information Act can greatly strengthen the functioning of the commission. Furthermore, it should work in close collaboration with the media and civil society, which are better placed to identify and highlight areas where exclusion and discrimination are widely prevalent.