Two quick updates on my last post on housing discrimination against Muslims and religious discrimination in general.

1. Private Discrimination: Ravi’s comment on my last post said that “I am against discrimination on religious grounds but I am not for forcing ‘non-discrimination’ through such measures.” The debate is an old one about whether the state can prohibit private discrimination. It first took place in the early 1960s in the United States in the run up to and after the Civil Rights Act, 1964, which prohibited racial discrimination by private parties (subsequently the US has prohibited discrimination on the grounds of national origin, religion, sex, age and disability by private parties).

I am not entirely sure if Ravi’s objection is legal, moral or strategic. Even under the strongly limited-State US constitution, the Civil Rights Act was valid. The Indian constitution, with its emphasis on equality, itself has several clauses prohibiting private caste discrimination. I don’t think there is a legal case to show that such prohibition would be unconstitutional.

Ravi’s moral objection is this : “How can the state which
discriminates in the name of reservations can claim any moral
authority to force such ‘non-discriminatory’ practices.”
This conflates the affirmative action debate and the private discrimination debate. Whether affirmative action is ‘discrimination’ in its pejorative sense is itself debatable. Personally, I think affirmative action is justifiable in certain contexts, although do not necessarily agree with all the means undertaken in India to achieve its goals. I am aware that whenever private discrimination takes centre-stage in Indian policy debates, one strain will certainly mirror the affirmative action debate. I can only point out a good defense of prohibiting private sector discrimination – John Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167. I have a copy of the article and will be happy to send it to you if you want it – just email me at tarunabh at gmail dot com.

Finally, I wonder whether Ravi’s objections are only strategic. He says that ‘Simple solutions like coercion by state will be counter productive.’ That may be a point about enforceability, or perhaps that it might increase religious and other tension rather than decrease it. If it is a question of enforceability, I completely agree that one has to look at imaginative solutions that will work in the Indian context. Perhaps the Western model of litigation-driven enforcement of the prohibition on private discrimination will not give the desired results. But if the point is that it will increase rather than decrease social disharmony, the problem always crops up whenever one tries to challenge injustice – because it shakes up the status-quo, there will be people who will be unhappy. Should one suffer what is wrong or try to deal with it by minimising conflict?

2. Alok Gupta (thanks) kindly pointed out the judgment in Om Prakash v. State of U.P. where a prohibition on sale of eggs in Hardwar was upheld by the Supreme Court in 2004. The case is entirely on the point of what is a ‘reasonable restriction’
under Article 19. It does not deal with the right to eat what I want point accepted in Hinsa Virodhak Sangh case.

But like Hinsa Virodhak Sangh, it teaches non-vegetarians to be ‘tolerant’ by citing Article 51A. I still fail to see this idea of tolerance which imposes a religious world-view on non-followers of that religion, and then when they complain, are told to be tolerant. Comparable examples would perhaps include non-Christians required by law to give up certain items of food during Lent, non-Muslims required by law to not eat pork and fast during Ramzan, non-Jews required to eat only Kosher meat – if they complain, they can be accused of being intolerant to Christians, Muslims and Jews respectively.

What is particularly disturbing about the Om Prakash case is that it specifically gives the majoritarian justification:
“in the present case where large number of people residing and visiting Rishikesh, believe in strict vegeratianism as a part of their religion and way of life. The appellants who are running hotels and restaurants and other like them constitute comparatively a very small section of the society engaged in carrying on trade of non-vegetarian food items in the town.”

Isn’t the entire point of an insulated Supreme Court entrusted with protecting fundamental rights is to guard against the tyranny of the majority? If the majority was always right, we wouldn’t need the Court, the Parliament would suffice.

As a further comment on the Court’s reliance on similar bans by Akbar in Hinsa Virodhak Sangh, why is a king who predates the constituion by at least half a millenium any authority on constitutional morality? Or is his being a Muslim relevant? Would the Court have quoted a Hindu ruler like Shivaji’s imposition of a similar ban? Is the Court really citing the merit of the ban or the religion of the imposer of the ban?