(This is a guest essay, authored by Malavika Prasad. It is the second essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first essay is available here.)
The Draft Equality Bill creates two categories of protections. First, it stipulates that discrimination of various kinds shall be forbidden, in chapter III, and in sections 3, 16(a), 16(b) and 19 as will the acts of hate speech, harassment, segregation, boycott, lynching and victimization, in sections 5-9. These prohibitions envision equality as a floor, below which any treatment shall be prevented, prohibited and protected against. Second, it stipulates that equality shall be promoted by way of diversification, equality plans, codes of practice, reasonable accommodations, measures for the advancement of persons disadvantaged by any of the protected characteristics, etc. in sections 15, 18, 20, 21, 22, 4 read with 17, and so on. These protections envision equality as equal access or equal opportunity above the floor of non-discriminatory treatment. These measures are intended at leveling the playing field between persons disadvantaged by a protected characteristic and those privileged by them.
The two categories of protections are broadly of the nature of ensuring “recognition” consonant with the aims of the Bill which are not only to prohibit, prevent, and protect against discrimination, but also aimed at promoting equality. Towards this end, the protected characteristics cover a range of historical and contemporary, structural axes of inequality from “caste, race, ethnicity, descent, sex, sexual orientation, gender identity, gender expression, tribe, nationality, disability, marital status, pregnancy, health (including HIV / AIDS status), political opinion and belief, linguistic identity, place of birth, age, migration, religion, refugee status, food preference”. The central underlying character of these “protected characteristics” is captured in section 2(jj)(ii) (which defines the kinds of protected characteristics that can be notified by an Equality Commission in future) as: “…where discrimination based on such characteristic or identity causes or perpetuates systemic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person’s rights.”
In this list of protected characteristics also figures “socio-economic status”, ostensibly aimed at the “eradication of socio-economic inequalities”. “Socio-economic status” is defined in the Bill as “a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications.” In this post, I will try to understand this concern of the Bill. I argue that the protected characteristic of “socio-economic status” is fundamentally different from other protected characteristics in the Bill. If the Bill seeks to promote distributive equality, then it needs to do more than prohibit discrimination and promote equality in the ways described.
The two categories of protections for “recognition” in the Bill – prohibiting discriminatory treatment below a floor, and mandating measures for equalizing opportunity above the floor – are best suited to secure and realise basic equal opportunities to persons facing caste, gender, disability or and similar structural inequality. However, we find that a person who is protected against discrimination and empowered with the equal access to opportunities to access schooling, work and housing, could still end up at a vastly unequal position compared with the socio-economically best off, despite comparable levels of effort and talent. How should an equality law account for this inequality of outcome?
Theories of distributive justice such as that of John Rawls are only comfortable with inequalities of outcome that result from varying given talents of different people who otherwise enjoyed equal liberties and opportunities. The pre-conditions for political and economic institutions are equal basic liberties (1) and fair equality of opportunity (2a). Under such conditions, since that the given talents of people vary, any resulting socio-economic inequality is justifiable by the “difference principle” (2b): the advantages of the best off must work to the benefit of the worst off.
However, in Indian society (and indeed in any real society) given the structural axes of inequality such as caste (/race/ethnicity), gender, disability, both of Rawls’ preconditions are seldom if ever met. When equal basic liberties and equality of opportunity are a mirage, an equality law must set about first guaranteeing basic equal liberties (1) and equality of opportunity (2a) on structural axes of inequality, before actualizing the difference principle (2b) for distributive inequality. So long as we have not perfected the conditions of equal liberties and equal opportunities, the difference principle cannot justify inequality of outcomes, as it results from unequal access to opportunities and unequal basic liberties.
If this is the kind of outcome-inequality the Bill intends to eradicate through the protected characteristic of “socioeconomic status” due to “low income”, “homelessness”, “poverty”, then two conclusions follow. First, inequality on solely economic grounds such as “low income” cannot be protected against. If the setback faced by a person is solely economic in nature, then the two categories of protection based in “recognition” are not capable of eradicating the economic disadvantage. “Recognition” based protections are more suited to eradicate inequalities in which the “social” component compounds the economic. In similar vein, even poverty and homelessness cannot be read as merely “economic” setbacks. If inequality due to solely economic conditions such as low income are sought to be remedied by this Bill, further clarity is needed on how it will tackle class-barriers to equal access and opportunity, as Gautam Bhatia points out in his post here.
Second, for eradicating socioeconomic inequality, the two categories of protections in the Bill are not enough. In addition to protections in the realm of “recognition”, the Bill must also stipulate protections of “redistribution”, these protections being interdependent on each other for successfully realizing equality (Nancy Fraser). Such redistribution cannot be a mere “floor of protection against the worst outcomes” with the aim of realizing a basic “sufficient” minimum, but ought also to envision a ceiling on the kind of material inequality that can possibly exist. (Samuel Moyn, Not Enough (2018)). B R Ambedkar’s Draft Articles on States and Minorities, 1945 are instructive on what such reinforcing protections of recognition and redistribution might look like, while also envisioning a ceiling on inequality.
Such measures might fall within the duty of the State to promote equality under Section 15(1), the duty to have “due regard to the need to take steps to meet the needs of persons with protected characteristics” under Section 16(b), or the duty to make reasonable accommodation under Section 22. However, these provisions do not capture the distinct nature of redistributive measures necessary for ensuring redistribution alongside recognition, in the absence of which courts – lacking ‘the power of sword and purse’ – will be ill-equipped to order such remedies.
Even remedying distributive inequality and structural inequality as mutually reinforcing forces is not enough, as Gopal Guru writes in Liberal Democracy in India and the Dalit Critique in assessing equality protections from the perspective of Dalits. In his words, “a more comprehensive assessment…. [needs] discussion of the language of self-esteem and self-respect.” Self-esteem is understood in terms of individual achievement and social ranking in institutions, while self-respect is understood as affirmative attitude one holds of oneself. Guru argues that the measures aimed at promoting equality in the Indian democratic framework enable gaining self-esteem but at the cost of one’s self-respect.
Drawing from Guru’s analysis, I worry that the categories of “recognition” based protections do not create opportunities for persons who are socio-economically disadvantaged to realise and enhance self-respect. Consider the diversification mandate in section 18 of the Bill. While it creates and sustains the background conditions for achieving self-esteem, such achievement comes at the cost of self-respect, as entry into and existence in such institutions under the diversification mandate, will be on the terms of the patrons – likely from dominant groups – who run the organization or institution in question. Guru argues that the need of Dalits to be considered on the terms of patrons is a constraint that permits a struggle only for relative worth, and not of equal worth. Moreover, it appears that section 18’s requirement would stand fulfilled by merely populating institutions with diverse identities, even if the institution is ‘ethically impoverished’ by erasure of the inclusive and egalitarian ideals behind diversification. In Guru’s words “… the idea of democracy or social justice or dignity, which forms the basis of modern public institutions, is reduced to Dalit identity…Thus ideas are compressed into identity.” Such institutions that are seen as embodying merely identities but not the egalitarian and inclusive ideas of diversity cease to hold public respect, Guru cautions. A similar outcome could result from diversification efforts even for persons from other protected groups. This results in further loss of self-respect.
The preamble of the Bill mentions the need to affirm human dignity in ensuring equality. While prohibitions on insulation and stereotyping of workers based on protected characteristics have been made in Section 10(1)(b) and (c) (which affirm human dignity), the Bill does not create affirmative duties towards enhancing dignity and self-respect of persons disadvantaged by a protected characteristic. Towards bridging this gap, granular duties tailor-made to each specific site of inequality, to undertake diversification or measures for the advancement of persons disadvantaged by protected characteristics in a self-respect enhancing manner ought to be made. Further, the Bill ought to stipulate the procedure by which these obligations will be discharged, which itself ought to be affirming of the dignity and self-respect of persons in question. For instance, duties and procedure must be laid down to honor the right of all persons disadvantaged by a protected characteristic, to meaningfully participate and be consulted on their evolving needs and requirements, accounting for their likely disparate bargaining power, in the undertaking of reasonable accommodation measures, with a possible guarantee of a minimum core support.
While awaiting a distributively just utopia…
While we await the realization of a utopian distributive equality, it is imperative to reckon with the sites of work that individuals (particularly those disadvantaged by socio-economic status) are likely to be reliant on, that are not protected by the Bill. The Bill protects individuals in the site of “employment”, in which “employer” is defined in section 2(o), across a spectrum covering (i) the head of an “department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government”, or (ii) in workplaces not covered in (i) the entity exercising any degree of supervision or control, or (iii) in workplaces not covered in (i) and (ii), the person discharging contractual obligations with respect to his or her employees; and (iv) the person or household benefiting from the work of a domestic worker. While this definition includes some kinds of atypical workers such those hired on contract terms, outsourced employees, and workers in the unorganized sector, it is unclear how this definition will apply to workers in the gig economy, as well as workers hired on casual, wage labour. Furthermore, atypical sites of livelihood such as those of self-employed hawkers, vendors, artisans stand excluded from the “work” based protections of the Bill, although they stand to face discrimination at the hands of the “everyday state” (a term borrowed from Anindita Mukherjee, Legal Right to Housing (2019) Cambridge University Press) such as a zoning or municipal authority. The avenues to realize socioeconomic wellbeing are increasingly outside of the typical sites of work and must also be included within the Bill as sites of discrimination, where equality must be promoted.