DISCRIMINATION

“The only difference between man and man all the world over is one of degree, and not of kind, even as there is between trees of the same species.
Where in is the cause for anger, envy or discrimination?” ― Mahatma Gandhi

[All human beings are born free and equal in dignity and rights] – Article 1 of the Universal Declaration of Human Rights.

The Fundamental Rights as assured under the Constitution of India guarantees to protect the basic human rights of all citizens of India and are put into effect by the courts, subject to some limitations. One of such fundamental rights is the Right to Equality. Right to Equality means that every person, who lives within the territory of India, has an equal right before the law and there shall be no discrimination based on religion, race, caste, sex and place of birth. It is not only the right of Indian citizens but also a right of non­citizens. It also includes equality of prospects in matters of employment, abolition of untouchability and abolition of titles. Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality in detail. This Fundamental Right is the major foundation of all other rights and privileges granted to Indian citizens.

Thus, it is imperative that every citizen of India has easy access to the courts to exercise his/her Right to Equality. It ensures the guarantee to every person the right to equality before law and equal protection of the laws and prohibits the discrimination. Article 14 emphatically says that “the State shall not deny to any person equality before the law or the equal protection of the laws” and Article 15 says that the State shall not discriminate against a person only on the basis of religion, race, sex, place of birth or any of them.

Fundamental Rights are not absolute rights and Parliament could put reasonable restrictions. The grounds for the restriction may be for the advancement of SCs, STs, OBCs, women and children or general public order or decency, mortality, sovereignty and integrity of India or security of state, friendly relations with foreign states etc.

PROTECTIVE DISCRIMINATION

This measure has been adopted for uplifting the weaker sections of a society by several countries including India. For a society as a whole to grow it is necessary that every section of the society must take part in the development of the society. At the same time every section should also receive the benefits of the growth. A society can never grow if several sections of the society are exploited. Further, it is also true that historically several sections of our society have been discriminated against and there exists a prejudice against them in the socially uplifted sections. The purpose of protective discrimination is to bring such weaker sections of the society at the same or comparable level.

From article 15(3) onwards, the Constitution starts Protective Discrimination. Article 15(3) empowers the State to make special provisions for women and children. Article 15(4) empowers the State to make special provisions for advancement of socially and educationally backwards or SC/STs. Article 15(5) goes one step further and empowers the State to make reservation in admission into education institutions including private schools or colleges whether or not aided by government. Only minority educational institutions (such as Madarsas) have been left out of this provision. Thus, article 15(3) and 15(4) are basis of reservation in the country.

Article 16(3), 16(4), 16(4-A) and 16 (4-B) provide further strength to all sorts of discrimination among the people on account of their unequal status. Article 16(3) allows the State to make any law making residence qualifications necessary in the case of government jobs, thus making the domicile provisions stronger. Article 16(4) allows the State to make reservation for any backward class of citizens which in the opinion of the State is not adequately represented in services. This opens door for Other Backward Classes (OBC) reservations. Article 16(4-A) empowers the State to make reservation in promotions also for SCs, STs and OBCs. Article 17 abolishes untouchability. Article 19(5) allows State to impose reasonable restrictions on freedom of movement and occupation to protect the interest of scheduled tribes.

Under Directive Principles of State Policy, Articles 40, 42, and 45, strive to give several benefits to weaker sections including reservation in panchayats for women and backward classes, free pregnancy care and delivery, and prevention of exploitation of children. Article 46 enjoins the State to take special care in promoting the social and educational interests of weaker sections of the society specially SCs and STs and to protect them from injustice. No provision made under Article 46 can be challenged on the grounds that it violates Fundamental Rights given in Part III of the Indian Constitution. The Supreme Court has directed the States to try to implement Article 44 to ensure equal treatment of women under all religions.

Article 164 provides Provision of Special Minister of State for Tribal Welfare for the States of MP, Bihar, and Orissa. Article 275 allows grant in aids to States for promoting tribal welfare. Article 330 and 332 allows reservation of seats for SC and ST in Lok Sabha and State Assemblies. Article 335 has been amended to allow relaxation of qualifying marks for SCs and STs in examinations for educational institutes or promotion in jobs. Article 338, 338 A, and 339 provides for the establishment of National Commission of Scheduled Castes and Scheduled Tribes. Under 339, Centre can direct the States to implement and execute policies for the betterment of Scheduled Tribes. Article 340 allows the president to appoint a commission to investigate the conditions of socially and educationally backward classes and table the report in Parliament.

EMPLOYMENT DISCRIMINATION LAW IN PRIVATE SECTOR

Last year a Muslim MBA student Zeeshan Khan having been refused employment by a private company Hari Krishna Exports Pvt. Ltd. on the ground that he is a Muslim, had attracted a lot of media attention. The police registered an offence in this case on the grounds of religious discrimination.

Now the question arises, whether the law against religious discrimination is applicable to a private company? Whether an offence could have been registered against the said private company on the ground of religious discrimination?

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.

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”.

Thus the fundamental rights contained in Articles 14, 15 and 16 cannot be applied in the case of a private company.

CRIMINAL SANCTIONS – Under the provisions of the Indian Penal Code, 1860 it is 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.

Parul

Senior Associate

The Indian Lawyer