Like any prime minister in the final year of his term, Dr Manmohan Singh must be considering his legacy. While all attention is focused on the Indo-US nuclear deal, not enough attention is being paid to the fact that implementing the recommendations of some of his committees has the potential to recast social relations in the future. Ever since Dr Singh did his bit to liberalise the economy in the early 1990s, resulting in a significant shrinking of the state, there has been a growing demand to impose social justice obligations on the private sector. This demand has mainly been articulated as one for reservations, India’s favourite vehicle for social justice. Caught between egalitarian constitutional imperatives and the constitutional guarantee of freedom of trade etc, wherein lies the appropriate balance? The task was delegated to two committees — the Madhava Menon Committee for an Equal Opportunity Commission, and the T.K.A. Nair Committee on Affirmative Action.

Let us first look at the Menon Committee Report, submitted in February 2008. The Committee has recommended that discrimination against ‘deprived groups’ identified on grounds such as a person’s caste, sex, religion etc must be prohibited in the public and private sector. ‘Deprived groups’ are to be identified by a ‘deprivation index’ rather than left to political expediency. An Equal Opportunity Commission is proposed as the implementation body.

Anti-discrimination is conceptually different from affirmative action. While the latter imposes positive obligations, anti-discrimination, at least in its core cases, only requires that action is not motivated by prejudice or stereotype. Examples of private sector discrimination abound, but to cite just one of them, a housing society in Mumbai recently refused to sell a flat to television actor Aamir Ali because he is Muslim. His petition to the Bombay High Court was rejected because the Constitution does not cover discrimination by private parties and there is no parliamentary legislation to cover the field. An Equal Opportunities Commission Bill would hopefully fill in this statutory gap. Legislation, however, must be preceded by a public debate to remedy some of the drawbacks of the Menon Committee Report, including its silence on the housing sector and its rather weak enforcement mechanism.

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