Removing Discrimination in Universities

Rohith Vemula’s suicide, one among the several instances of suicides of Dalit students in Indian universities, has received a fair amount of attention. The event has also generated a feeling of helplessness among Dalit rights activists.

The notification and subsequent enforcement of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 came just a few days after the incident. Even before the amendment, the act, popularly known as Atrocities Act, had the image of a “stringent” act.  It is true that by introducing a presumption vide Section 8 (c) it removes the difficulty of proving caste motive in instances of violence. But the amendment does not remove the burden and standard of proof, which would still need to be “beyond reasonable doubt,” on the complainant. Legally stringent laws are those which shift the burden of proof to the accused and follow a standard of “preponderance of evidence” than “beyond reasonable doubt.” So calling it “stringent” is unfounded, going by legal standards.

Addressing Indirect Discrimination                        

Modern institutions like universities are too smart to practise crude discriminatory practices like separate water pots for Dalits that happen in some rural schools (Sukumar 2008). The defining attribute of indirect discrimination (practised in modern institutions like universities) is that it counts substance than form and impact than intent.  Indirect discrimination operates by acting on discourses like merit, rights, academic freedom/autonomy, academic excellence and accountability in the university system.

Without a law on indirect discrimination, discrimination can always recur in changed forms. This seems to be what is happening. While law mandates for a certain percentage of Scheduled Caste/Scheduled Tribe (SC/ST) student intake, which the higher education institutions cannot disobey, the SC/ST students suffer in multifarious ways after admission for which the Atrocities Act has very little answer.

For example, faculty are granted autonomy in good faith regarding certifying student progress. A faculty supervisor has substantial autonomy to certify whether the research scholar is progressing or not based on which the scholar’s fellowship is granted. However, should the faculty misuse such autonomy and discriminate SC/ST students then a law on direct discrimination like Atrocities Act will be ineffective as in extreme situations the faculty will take recourse to “error of judgement.”

It is analytically useful to be aware that an empirical action could be the exercise of both rights/autonomy as well as discrimination. According to Max Weber, a real action in contrast to an ideal one can simultaneously be zweckrational (goal oriented), wertrational (value oriented) and affective (emotional).  Further, action also includes “failing to act.” We can also draw from Talcott Parsons that a particular action can be universalistic or particularistic to various degrees and not be divided into watertight compartments. The various actions/inactions that happen in the university may not be purely “rational” but may be laced with some “affect” and “tradition.” A student’s definition of a “good” teacher and a teacher’s definition of a “good” student may not be purely “rational” in the sense of an objective assessment. Formally neutral norms/practices like “grading” and “student feedback” can constitute substantively discriminatory practices in a university.

Direct discrimination can be isolated and prohibited with relative ease. However, when discrimination is mixed with various discourses like rights, autonomy and excellence then it is difficult to separate and prohibit. This is indirect discrimination. However, advances in human rights has resulted in a focus on the concept of indirect discrimination. Simply speaking, this means what you should not be doing directly, should also not be done indirectly under any pretext (Doyle 2007).

A law on indirect discrimination tries to counter such discriminations under the garb of rights/autonomy. It does not accept neutral sounding discourses like university discipline or academic quality at their face values. One has no option but to curtail the rights/autonomy proportionately to prevent discrimination beyond a point. Just like affluence leads to effluence, discretion leads to discrimination.

A “statistical test” of discriminatory practices can be used as proof to raise the level of scrutiny against indirect discrimination. This method goes beyond the usual “case to case” approach and tries to spot a pattern. If almost all those who have committed suicides in a particular institution are Dalits, or if almost all those who fail and are expelled from a higher education institution are Dalits, then all of these cannot be a coincidence. This scrutiny makes institutions responsible in cases of indirect discrimination.

Usually only commissions constitute crime from the legal point of view. Authorities become culpable for their “activity”, not their “passivity.” However from the morality point of view both commissions and omissions are crime. A real “civil” society cannot sustain itself only with laws of commissions. Laws related to omissions are equally necessary. A law on indirect discrimination takes care of omission as it focuses on the result rather than the procedure per se. It focuses on the final justice rather than only the procedural justice.

Discrimination Audit of Organisations

While we need reactive measures like law, we also need a proactive measure for tackling discrimination at modern institutions. It is said that law comes after, not before the crime. So even a law on indirect discrimination will act only after the discrimination takes place. It necessitates taking some proactive measure, less crude than law, which can capture and prevent indirect discrimination which is sophisticated. A discrimination audit can fulfil such a function.

The present era is supposed to be the audit era. We have performance audit, gender audit, environment audit, social audit, etc. Academics are facing the danger of the “audit culture” in a neo-liberal era. However, the equivalent of social audit, which happens for development projects, does not exist in academics. Academics exhort the government and the corporate to adopt social audit, but shy away from it when it comes to themselves. Who will judge the judges? Today in academics we have enough of performance audit but not of discrimination audit, the equivalent of social audit.

Discrimination audit can create moral pressure on the institutions to be more proactive to be just. Though this may only serve a symbolic function, it will be seen to be a moral compass in society.

References

Doyle, Oran (2007): “Direct Discrimination, Indirect Discrimination and Autonomy,” Oxford Journal of Legal Studies, Vol 27, No 3, pp 537–53.

Sukumar, N (2008): “Living a Concept: Semiotics of Everyday Exclusion,”  Economic and Political Weekly, Vol 48, No 46, pp 14–17.