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.

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.

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