http://scroll.in/article/731392/religious-apartheid-india-has-no-law-to-stop-private-sector-from-discriminating-on-grounds-of-faith
Religious apartheid: India has no law to stop private sector from
discriminating on grounds of faith
The United States ensured decades ago that nobody could be denied a
job in private or public sector on the basis of sex, race, religion.
India needs to follow its lead.
Abhishek Sudhir · Yesterday · 05:30 pm
Religious apartheid is back in headlines. Recently, when MBA graduate
Zeeshan Khan applied for a job at Hare Krishna Exports Private Ltd, a
representative of the diamond export firm wrote back to him in an
email that it hires only non-Muslims. As the episode snowballed,
becoming the subject of TV talk shows, the company claimed that it
does in fact employ several Muslims and that the representative who
wrote to Khan was unaware of its hiring policy.
Leaving aside the explanation given by Hare Krishna Exports, Khan’s
case raises several questions. Can he sue the company? Can the company
be compelled to consider his application on merit? Can sanctions be
imposed against the company if it is found that it does, indeed, have
a hiring policy that disqualifies Muslim candidates from applying?
The answer to all of these questions is a resounding no – there is at
present no law prohibiting employers in India’s private sector from
discriminating against job applicants on the basis of religion.
No constitutional protection
Article 14 of the Constitution emphatically says that “the State shall
not deny to any person equality before the law or the equal protection
of the laws”. Article 15 prohibits the State from discriminating on
grounds of religion alone. Article 16, too, protects Indian citizens
from being discriminated against on grounds of religion in matters of
employment under the State.
But all these articles check religious prejudice in public employment.
The “State”, as defined by Article 12 of the Constitution, includes
“the Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government
of India”.
Khan, therefore, cannot have any recourse to the fundamental rights
contained in Articles 14, 15 and 16, since Hare Krishna Exports
Private Ltd isn’t under the control of the Indian government. As Hare
Krishna Exports is essentially a private sector company, it is free to
discriminate on grounds of religion when hiring employees.
Criminal sanctions
It is perhaps for this reason that the police registered a first
information report under Section 153B (1) (b) of the Indian Penal Code
against the directors and the employee of Hare Krishna Exports who
sent out the email. Section 153B (1) (b) of the IPC makes it an
offence to publish in written form that a person should be deprived of
their rights as citizens of India by reason of their being a member of
a particular religious group.
For the employee and the directors of Hare Krishna Exports to be
convicted under this section, the prosecution will have to prove that
the email sought to deny Khan his rights as an Indian citizen because
he is Muslim. However, as shown earlier, Khan can be discriminated
against on the basis of his religion alone since he has no right to
equality of opportunity in matters of private employment. It is
therefore unlikely that there will be a conviction in the case.
In any event, the trial is likely to be a long and arduous process.
The directors have already approached the Bombay Sessions Court for
anticipatory bail and they look set to fight the case tooth and nail.
Even if there is a conviction, it is unlikely to be of any real
benefit to Khan.
While he might derive some satisfaction if those associated with Hare
Krishna Exports are sent to prison, he still might just face such
discrimination again in the future.
Employment discrimination law
This case proves yet again that time has come for India’s lawmakers to
follow the lead of the world’s oldest democracy and put in place a
stringent law that prevents discrimination on the grounds of religion
by the private sector.
The most important source of statutory protection in the United States
is Title VII of the Civil Rights Act, 1964, which prohibits employers
from discriminating against employees on the basis of sex, race,
colour, national origin and religion. Importantly, Title VII applies
to both public as well as private employers, provided they employ 15
or more individuals. Its enforcement is the responsibility of the US
Equal Employment Opportunity Commission.
The Commission has the authority to investigate charges of bias
against employers who are covered by Title VII. If it finds that
discrimination has indeed occurred, it tries to settle the dispute
with the employer. However, if it is unsuccessful in resolving the
situation amicably, it has the authority to file a lawsuit on behalf
of the aggrieved party. The employer is then exposed to possible
compensatory damages for the emotional pain, suffering, mental
anguish, loss of enjoyment of life, and other monetary losses suffered
by the job applicant on account of being discriminated against.
A comprehensive anti-discrimination law modelled on Title VII being
made applicable to the private sector, and the creation of an Equal
Opportunity Commission to enforce its provisions, is the need of the
hour in India, a country where the predicament that Khan finds himself
in has become all too common.
Products of the past
Various reports commissioned by the Indian government, such as those
prepared by the Sachar Committee and Menon Committee, have chronicled
Muslims’ tales of woe when it comes to education, employment and
housing. Short on the heels of Khan’s revelations came a young woman’s
claim that she was evicted from a flat in a Mumbai suburb because she
is Muslim.
All of this brings to mind a candid speech made by Jawaharlal Nehru a
few months before the birth of the Indian Republic:
“None of us can say in his heart of hearts that he has no
prejudice and no taint of communalism in his mind or heart. None or
very few can say that, because we are all products of the past.”
Nehru made this statement shortly after the Constituent Assembly had
decided that there would be no reservations on the basis of religion
in the Constitution. He sought to “remind the House that this is an
act of faith, an act of faith for all of us, and an act of faith above
all for the majority community” as they would have to demonstrate to
the minority communities that they could treat them in a generous,
fair and just way.
Some 65 years later, Khan’s plight has to make one wonder whether
India’s Hindu majority has lived up to that faith.
--
Peace Is Doable
--
You received this message because you are subscribed to the Google Groups
"Green Youth Movement" group.
To unsubscribe from this group and stop receiving emails from it, send an email
to [email protected].
To post to this group, send an email to [email protected].
Visit this group at http://groups.google.com/group/greenyouth.
For more options, visit https://groups.google.com/d/optout.
