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Job application rejected on religious grounds: Morally reproachable but not legally culpable?

By Ragini Gupta July 27, 2016

Many will be familiar with the story of Zeeshan Ali Khan, who was allegedly denied a job by a private company because of his religion. The twenty-two year old MBA graduate applied for a marketing job at Hare Krishna Exports Pvt. Ltd., a diamond export company in Mumbai. According to him, he received a response within fifteen minutes, which said that the firm only hired non-Muslim candidates.[1] Two friends who had applied with him, both Hindu, received job offers.[2] Mr. Khan posted a screenshot of the shocking email on Facebook, and the story soon went viral. An outpouring of support for Mr. Khan and criticism for the company followed on social media.  An FIR for this alleged discrimination was filed against the company, under Section 153-B (1) (b) and (c) of the Indian Penal Code 1860.  However, there is a very important question here that cannot be overlooked: Does this private company’s rejection of the application on religious grounds, however distasteful and morally reprehensible it may be, attract civil or criminal liability under the law in India as it exists today?

 In this post, I shall examine the relevant Indian law and assess whether it would apply to a situation like this one. I shall also be discussing the legal framework that exists in other countries, that addresses this serious social issue as well as any attempts in India made in the past to bring in a law that could adequately cover cases like these.

Before we turn to the law, however, it would be appropriate to bring up the social dynamics that are behind this fact situation. In a country where the relations between people of different religions has been marred with numerous incidents of hatred and often bloodshed, this incident, sadly does not come as an altogether large  surprise. To what extent religious discrimination with reference to employment exists in India cannot be precisely ascertained, however, there has indeed been some research on this topic. A study[3] that appeared in the Economic and Political Weekly in 2007 attempted to answer this question. The methodology followed by the researchers was this: The researchers collected advertisements announcing job openings in entry level positions in various private sector firms. Sets of resumes and application letters were prepared, with identical educational qualifications and work experience. All the applications purported to present strong candidates with suitable degrees from reputed universities. The only difference in the applications was that one set of applications, had in the name of the ‘applicant’ section a visibly Muslim name, while the names in the other set of applications were suggestive of individuals belonging to high-caste Hindus. (No explicit mention of religion was made) The study found that the Muslim ‘applicants’ were statistically, significantly less likely to receive a call for the next stage of the selection process than equally qualified Hindus.

 

The law in India

Having presented a situation where religious discrimination can play a role  in hiring, we now look at the legal scenario here. The first to be examined is Section 153-B of the IPC under which the FIR in this case was filed. Section 153 B (1) (b) penalizes, inter alia, assertions that any class of persons by reason of their religious beliefs be denied their rights as citizens of India. Employment in the private sector is not a ‘right’ guaranteed to people by virtue of their being Indian citizens. Thus it is very obvious on a plain reading that the statement made by the company would not amount to an ‘assertion’ within the meaning of this Section.  Section 153 B (1) (c) criminalizes any assertion concerning the ‘obligation’ of any person by reason of their belonging to a religious group, which is likely to cause feelings of enmity between such members and other persons. Firstly, the company’s rejection did not mention an ‘obligation’ of any kind and it seems unlikely that it can be proved that it is likely to cause ‘hatred’ or ‘enmity’ between religious groups. Thus whether a conviction will result in this case is a doubtful matter.

Another related provision is the ‘hate speech’ Section 153-A, which makes it an offence to attempt to promote enmity, hatred or ill will between,  among other things, different religious community, as well as any such conduct which is likely to disturb the public tranquility. As with Section 153-B, the language of the Section is disproportionate to this factual situation, howsoever appalling the company’s conduct was.

It is true that the Constitution of India guarantees equality before the law under Article 14 and prohibits discrimination on grounds of among other things, religion under Article 15. However these Fundamental Rights are only enforceable against the State (that is, the government, its agencies and establishments).  Thus private companies are not constitutionally bound to treat persons of all religions equally. In fact, it is possible that the Supreme Court may have actually endorsed the reverse proposition. In a Supreme Court decision[4] dated 2005, with a somewhat related factual situation, namely, persons from different religions being barred from buying plots in an exclusively Parsi housing society, it was held that the Society was entitled to do this on religious grounds, on of the reasons being that “ …Part III of the Constitution has not interfered with the right of a citizen to enter into a contract for his own benefit and at the same time incurring a certain liability arising out of the contract.”[5] 

 Thus, it could easily be argued that under the present law, the private company enjoys the freedom to contract with whomever they please. Even if a conviction does result in this case, one rather vaguely worded Section of the IPC is not sufficient to address the various permutations and combinations of situations related to religious discrimination at the workplace. There is clearly a serious need for such a law in India.

 

Applicable legislations abroad

Various nations such as the U.S.A, U.K., and Australia have laws that prohibit employers from discriminating against employees or prospective employees on the basis of religion.

The most prominent among these is Title VII of the Civil Rights Act[6], 1964 in the U.S.A.  Some key features of this extremely comprehensive legislation are:

  • It holds employers responsible for religious discrimination not only by supervisors but also by co-workers. Employers are duty bound to have clearly communicated policies that deal with such discrimination, train managers to deal with complaints of discrimination and make it clear to employees that such conduct is prohibited.
  • It applies not only to the hiring stage, but also to any discrimination that may take place in promotions, transfers, and related matters.
  • An interesting feature of this law is ‘religious accommodation’ which means that employers are required to reasonably accommodate religious practices of employees such as wearing headscarves or not working on a particular day of the week, unless such an accommodation causes unreasonable hardship to the employer

In a recent case[7] the U.S. Supreme Court ruled in favor of a case where a woman was denied a job because she wore a hijab, with the company arguing that such attire violated the dress code under their corporate policy, holding that this did indeed amount to workplace discrimination. In another case,[8] a settlement was arrived at in favor of a Muslim woman who wanted to wear a headscarf with her bus drivers uniform as well as a Pentecostal woman who wanted to wear skirts with her uniform instead of pants.

Therefore the U.S.A law is clearly sensitive to the various ways in which religious discrimination at the workplace may manifest itself.

 

Possibility of a relevant law in India in the future

In 2013, there were reports that the government would possibly introduce the Equal Opportunities Commission Bill in the budget session that year.[9] In fact, an expert committee had presented a report along with a draft bill[10] on such a proposal in 2008.  It was recommended that the proposed Equal Opportunities Commission was to be given the functions of holding inquiries into complaints of discrimination at the workplace, conciliate such disputes and support proceedings in the Courts wherever necessary, or to direct the Government to take action including prosecution against persons who had acted against the directives of this Commission. However, since 2013, this Bill has not been heard of. In 2014, there were reports[11] that this Commission would only protect minorities. This is a rather disappointing development. Indeed, minorities are more vulnerable to discrimination, however a community that constitutes a majority nationwide could very well be a minority in a State, district or locality, shifting the balance of ‘vulnerability.’ Further, religious discrimination needs to be condemned irrespective of who is committing it. Since 2014, the proposal to set up the EOC has not been heard of.

 

Conclusion

The much publicized incident has only highlighted an issue which has been substantially  prevalent in India for a long while. It should hopefully act as a catalyst to enact a law prohibiting religious discrimination even in the private sector following the example set by various countries.  Clearly, the Constitutional promise of non-discrimination is not sufficient in India where eighty percent of the workforce is in the private sector,  where discrimination is probably continuing unobstructed.[12]This is critically important in a deeply religious society like India. To those who argue that the autonomy of the private sector [1]must be respected, it must be said that what is at stake here is unity and security of the country, which should certainly take precedence.

  1.  Photo Courtesy: https://www.google.co.in/search?q=employment+discrimination+religion&espv=2&biw=1368&bih=639&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMIktmchrDaxgIVSiOOCh1E-QIT#imgrc=iLMFRJcpst6pAM%3A
  2. http://www.yourlawyer.com/topics/overview/employment_discrimination

 ........................................

[1] http://www.firstpost.com/politics/mba-grad-zeeshan-ali-khan-denied-job-muslim-accepts-offer-adani-2271434.html

[2] http://www.thehindu.com/news/cities/mumbai/zeshans-friends-reject-job-offer-from-diamond-firm/article7236313.ece

[3] The complete study can be accessed here:

http://web.iitd.ac.in/~sbpaul/HUL736/Caste/thorat%20and%20attewell,%20epw.pdf

[4] Zoroastrian Cooperative Housing Society v District Registrar

The judgment may be accessed here: http://indiankanoon.org/doc/713373/

[5] Supra, para. 16.

[6] The statute can be viewed here: http://www.eeoc.gov/laws/statutes/titlevii.cfm

[7] http://news.adventist.org/all-news/news/go/2015-06-01/us-supreme-court-rules-abercrombie-discriminated-against-applicant-in-workplace-religious-discrimination-case/

[8] United States v. Washington Metropolitan Area Transit Authority: Consent decree may be accessed here:

http://www.justice.gov/crt/spec_topics/religiousdiscrimination/wmata_motion.pdf

[9] http://www.firstpost.com/india/equal-opportunities-commission-bill-to-be-introduced-in-budget-session-613504.html

[10] https://www.nls.ac.in/csseip/Files/Additional/EOC.pdf

[11] http://www.ndtv.com/india-news/upa-ready-with-equal-opportunity-panel-for-minorities-ahead-of-national-elections-547112

[12]http://www.kentlaw.iit.edu/Documents/Institutes%20and%20Centers/ILW/Jackson%20Louis%20Writing%20Competition/Shenoy_EmploymentLawIndia.pdf

TAG: Zeeshan Ali Khan , Section 153-B (1) (b) and (c) of the Indian Penal Code , hate speech , Title VII of the Civil Rights Act[ , 1964 , Equal Opportunities Commission Bill


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By Ragini Gupta
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Rajasthan, Jodhpur

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