Alok Prasanna Kumar(With an anti-discrimination legislation back on the political agenda, Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has responded with a draft Equality Bill, 2016. myLaw.net has invited some scholars and advocates to comment on this draft and over the coming weeks, will publish their responses here. We are quite excited to publish the first contribution to this debate from Alok Prasanna Kumar of the Vidhi Centre for Legal Policy, who has critiqued the appointment process for the proposed Equality Commission.)

In a nation riven by caste, class, religion, gender, tribal, and linguistic boundaries, (among many, many other lines of division) the idea of equality seems like a distant mirage. The Constitution of India, by stating a commitment to not just formal equality before law but also substantive equality in society, seems like a radical statement of intent, one whose realisation seems impossible on the face of it. Yet, attempts have been made, bit by bit, to remedy the worst of the iniquities and prejudices that mar Indian society but in the larger picture, seem too few and too far between.

In this scenario, Tarun Khaitan’s proposed Equality Bill (“the Bill”) must be seen as a bold attempt at working equality not just into our laws, but into the functioning of the State and its institutions and society as well. It is an effort to not just provide for remedies against violations of equal treatment under the law, but a comprehensive attempt to address discrimination and prejudice that runs deep in society. It is not just a comprehensive anti-discrimination bill, but also one that seeks to foster and further the goal of equality in society.

As others have focused on the intent and mechanism of the main parts of the Bill, I will focus here on the enforcement aspects of the Bill, specifically the Equality Commission (“the EC”). As clear as the norms are in any legislation, the success of the law as a whole will depend on the institutions that are tasked with its implementation. A law must be drafted with an understanding of the structural strengths and weaknesses of the institutions tasked with enforcement and to this end, there is room for improvement in the Bill.

The Bill’s enforcement mechanism has both proactive and reactive elements. This is not so easily split into the functions of the EC and the State Equality Commissions (“the SEC”) on the one hand, and the functions of the Equality Courts. This, I think is a problem with the Bill. For the purposes of this comment, whatever has been said about the Commission also applies to the State Equality Commission unless otherwise indicated.

Constitution of the Equality Commission

The EC has been created along the same lines as the National Human Rights Commission, the National Commission for Scheduled Castes, et al. It consists of a Chairperson and members who are either ex-officio members (or their representatives) or those selected for their commitment and expertise in fulfilling the Bill’s mandate. While there is some diversity mandated in the composition of the Commission, the appointment process leaves much to be desired.

The Bill replicates the appointments process in most other central legislation of having a high-powered committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha (“LOP”), the Chief Justice of India (“CJI”), and the Chairman of the University Grants Commission (“UGC”). While this committee is required to consult a group of authorities while making appointments, this process has two flaws, one minor and one major.

The minor flaw is that as a body of four persons, there is all likelihood of a deadlock. There being no “tie-breaker”, this could lead to a serious hold-up in appointments, especially if the “Government members” (the PM and the Chairperson, UGC) concur and the “non-Government members” (CJI and LOP) don’t. No procedure for decision has been prescribed and one has to assume (in light of the judgment in Centre for Public Interest Litigation v. Union of India) that this means a decision by majority has to be taken. While differences of opinion exist in such committees, there is potential for it to become a deadlock. This can be resolved either by increasing the number of members to five or by giving one person the casting vote in case of a tie.

Appointments process is too centralised

The major flaw is that this replicates the appointment process that has led to the massive centralisation of the appointment process and a consequent delay in appointments. By my rough estimate, no fewer than seven other laws have more or less the same composition of appointment committee. To overburden the same authorities with more and more appointments (between six to ten in this case), involving a detailed consultation procedure, may not make for a swift and efficient appointment process. The fate of the Lokpal and the vacancies in the Central Information Commission are a reflection of this.

The consultation process too has its problems. Of the eleven persons who must be consulted, at least eight are appointed by the government itself and may not present a sufficient diversity of views on the matter. Moreover, these eight persons represent eight bodies that are also represented on the Commission. It is difficult to see what purpose this consultation will serve in getting a healthy diversity of views in appointment. It is also not clear why the President of the Supreme Court Bar Association (a purely private body representing one sub-set of lawyers) should be consulted when the Chairperson of the Bar Council of India is also being consulted. Likewise, the requirement to consult any two Vice-Chancellors may likely result in the government consulting only those Vice-Chancellors it has appointed.

Since the EC is a body empowered to take action against the government and its officers for failing to do their duty, one that is so controlled by the government in the manner in which it is constituted may not result in a sufficiently independent body that that carries out its functions in a robust manner. While there has to be some involvement of the government, it may make more sense to involve greater civil society participation and transparency in the process. A five-member body featuring a representative of the executive, legislature, judiciary and members of civil society unaffiliated with government would in my view make an adequate replacement to the present scheme. The process could also be made more transparent by requiring that members apply to be considered, interviews be conducted in an open manner, and decisions be made on clear criteria laid down by the appointing committee.

(Alok Prasanna Kumar is Senior Resident Fellow at Vidhi Centre for Legal Policy.)