Religious discrimination – II

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?

Written by
Tarunabh Khaitan
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  • Who decides which discrimination is
    permissible and which is not permissible.Constitution itself
    provides for reservations but can that be allowed to eclipse the principle of equality.Even when funded 100% by governent there are
    limits to state’s intervention in
    minority institutions in admissions
    and appointment of faculty. Can the state force them to employ
    non-minorities arguing that their
    absence amounts to discrimination.

    Although the judgment in the Housing Society case is controversial it drives home an important point on the freedom of association and the rights available under that freedom.
    Attempts to negate them under the guise of ensuring non-discrimination is not a wise solution as that would defeat the
    purpose of that freedom to form
    associatons and manage them.
    Non-discriminatory practices need
    to be tackled in a different way.

    Can the state force that a society consisting only Parsis as members
    should induct non-parsis also as
    members. If so on what basis.
    We have all women associations,
    self-help groups, all women police stations besides reservation for women.Similarly physically challenged persons can form associations excluding others.
    Discrimination is also a question
    of perception.So is the case of
    representation and non-representation.Non-representation
    from a group cannot be presumed
    be soley on account of discrimination.
    On the other hand if a housing society denies the fundamental rights to an occupant or owner or negates their rights, soley on the basis of faith,ethnicity state can intervene.
    I understand that in Kerala there is a temple that is open only to women. Should this be challenged
    on grounds discrimination on account of gender. In Sabarimala
    there is a restriction on entry, not against women per se, but of women of certain age group. Now if
    that bar should go, should we also
    accept that there should be no temple exclusively for women.
    I am trying to illustrate that
    discrimination is a difficult concept to handle because in
    pratice discrimination sometimes
    may favor one group that needs
    that positive discrimination.

  • Dear Ravi
    All your questions are valid, and most of them are answered (quite convincingly, I think) in the Gardner article I mentioned in my main post. Let me know if you want to read it.
    If I understand your main question to be the problems with deciding who should be protected by anti-discrimination law, there is a mountain of jurisprudence in many countries on the topic, and as it happens, my doctoral thesis is on this very precise question. So I completely agree with you that these are vexed questions, but not without reasonable answers.
    A short response to your specific queries – in my opinion, private associations can restrict entry as they wish, but if they provide any service, sell any goods, provide housing, employment or similar things that touch upon the rights of others, they cannot discriminate on certain grounds (which are related to protection of personal autonomy – Gardner makes this point rather well).
    Very interestingly, you make a point about the conflict between equality (freedom from discrimination) and liberty (freedom of association) and favour the latter. Gardner actually locates the prohibition of discrimination in protection of personal autonomy, and therefore gives it underpinnings of liberty rather than equality. Therefore, the argument goes, anti-discrimination laws increase liberty not decrease it. I am doing a bad job of summarising what is a very nuanced point, so please do send me an email and I will send the article across, if you want to read it.

  • Thanks Tarunabh. The Sachar Commission has recommened a commission/body
    on equal opportunities similar to
    the one UK. I understand that some work is being done on this.
    In the indian context in some
    circumstances gender may be a major factor in discrimination
    than faith or caste. So taking into account multiple factors and
    modes of discrimination, it is a
    herculean task to institutionalize such a body in India.
    I will send an email requesting that article after ensuring that I have no access to it.