Illegal, and more

These days, rather too often, the line between bona fide outrage (which can take many forms, not all of which can be termed reasonable) and effective means to counter or combat what is a wrong, or wrongful action, gets blurred.

The lodging of an FIR against Hare Krishna Exports Private Limited, which in a terse message refused to hire Zeeshan Ali Khan, an MBA, only because he is a Muslim, falls in that category. The company's complicity is clear, notwithstanding its "apology" and announcement of firing the fresher trainee in the HR Dept. Nobody buys that logic, or the argument that because it has one Muslim among 61 employees at the Mumbai office, it cannot be accused of discrimination.

For the record, the argument here isn't about diversity in the workplace, or about even about a procedure for affirmative action. Though, it must be said that the corporate sector, since 2005, has always resisted any policy measure by the government. The moot question is — can the company be prosecuted, let alone held criminally liable, for an obvious act of discriminating against a Muslim candidate? If more such cases tumble out of the closet, would they help build up a stronger case? Merely filling an FIR means little, because charges can always be quashed in a court of law.

Many people, on social media and elsewhere, are quick to invoke constitutional provisions and contend that since discrimination on grounds of sex, caste, or religion is prohibited, Hare Krishna Export's actions are not only unconstitutional, but also illegal. This argument is flawed for several reasons. Foremost among them is that the fundamental right not to be discriminated against applies only against the State- that is, the government and all its agencies and functionaries.

Zeeshan Ali Khan was denied a job only because he is a Muslim, falls in that category. File pic
Zeeshan Ali Khan was denied a job only because he is a Muslim, falls in that category. File pic 

Then, the misconception about constitutional prohibition. Consider Article 17, which forbids the practice of untouchability in any form, and states that it shall be a punishable offence "in accordance with law." The law in this case is the SC and ST (Prevention of Atrocities) Act, 1989. If this law wasn't there, the police wouldn't be able to book anyone even if he practised untouchability or discriminated against a Dalit in the most brazen manner. Because, criminal charges can't be levied by citing just constitutional provisions.

As of now, there is no law which declares that depriving Muslims of their rights — in education, housing, or employment, is a penal offence. Hence, the police has been constrained to invoke Sections 153B, 295A, and 505 (2) of the Indian Penal Code. Taken together, these criminalise any act of discrimination which can cause public mischief and communal disharmony, and threaten India's sovereignty and integrity.

Needless to say, if the matter finally goes to court, all these charges would be quashed, because they are grossly disproportionate. It is a fact that anti-Muslim bias is endemic and it's so pervasive that a victimised Muslim might be seething with indignation, but the community would not take to the streets protest. It would be an exercise in futility- in Hindu majority India, majoritarian communalism is more the norm than an aberration.

The Supreme Court's judgement in the Zoroastrian Co-operative Housing Society case (2005) vested house owners with the right to decide on tenancy, sale or lease on lines of religion. Which, as is well-known, is responsible for even affluent Muslims facing uphill struggles and humiliation while seeking accommodation in Mumbai.

Title VII of the Civil Rights Act of the US provides the best reference point for an effective legal recourse against the plethora of discriminatory practices. It allows individuals and groups to sue both government and private sector organisations, even members of the public, for any act of racial prejudice or sexist bias. If similar legislation and policy are enacted and implemented in India, it could be a welcome and urgently needed deterrent against all the private acts of discrimination which play out in the public domain with increasingly dangerous frequency, and impunity.

Saurav Datta is associated with the Commonwealth Human Rights Initiative, Delhi, which works towards better policing.

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