The issue of 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, has attracted a lot of media attention. The police has reportedly registered an offence in this case on the grounds of religious discrimination. The National Commission for Minorities has also taken notice of this issue. Let us analyse the constitutional and other legal provisions to find out as to whether a private company is legally bound under the provisions of the Constitution or of any law to recruit its personnel from all religions equally or whether it has complete freedom to select people of its own choice. 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? Let me try to be the Devil’s advocate and point out that there is no law which compels a private entity to select its employees equally from all religions or without religious discrimination, howsoever desirable or undesirable it may be. Let me point out that the action of the Mumbai police in registering an offence under the Indian Penal Code (IPC) against the above private company is absolutely wrong and illegal. As a disclaimer, let me point out at the outset itself that I do not believe in discrimination on the ground of religion and I strongly believe that all religions must be treated equally, however the purpose of writing this article is to point out that there is no legal provision which compels a private company to not to discriminate on the grounds of religion and that a private company has complete freedom to select its employees. My purpose is, thus, only to write on the legal and constitutional issues involved in this matter and I am not commenting on the merits of the issue.
The law against discrimination on the grounds of religion is contained mainly in Article 15 of the Constitution, the relevant extracts of which are reproduced below:
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.”
Clause (1) of Article 15 prohibits the State from discriminating against any citizen on grounds only of religion, etc. It may be pointed out that this prohibition is applicable only against the “State”. What is “State”?
“State” is defined under Article 12 of the Constitution, which is reproduced below:
“12. Definition.—In this part, unless the context otherwise requires, “the State” 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.”
For the purposes of the present article, it may be stated that “State” basically means the Government of India and the State Governments, Parliament and State Legislatures, local authorities such as municipalities, etc., other authorities such as statutory corporations, public sector undertakings (PSUs), etc.
A private company or any other private entity is not “State” within the meaning of the aforesaid definition.
In this regard, a reference may be made to the case of K.S. Ramamurthy Reddiar v. Chief Commr., Pondicherry, AIR 1963 SC 1464 : (1964) 1 SCR 656, in which a Constitution Bench of the Supreme Court held as under:
“… Article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Therefore it is only when the State as defined in Article 12 (for there is nothing in the context of Article 15 to require otherwise) discriminates, that a citizen can complain of the breach of Article 15 and ask for relief from this Court under Article 32. … If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State. The protection of Article 15 is against discrimination by “the State”. The petitioner therefore would not be entitled to any protection under Article 15 …”.
Thus, the prohibition contained in clause (1) of Article 15 is applicable to only those entities which are within the meaning of “State”. Therefore, the prohibition against discrimination only on the ground of religion, as laid down in clause (1) of Article 15 of the Constitution is not applicable to a private company. Accordingly, there is no such prohibition against a private company and it is free to select its employees as per his own selection criterion. This is insofar as clause (1) of Article 15 is concerned.
Now, clause (2) of Article 15 has two other prohibitions:
- No citizen shall, on grounds only of religion, etc., be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment.
- No citizen shall, on grounds only of religion, etc., be subject to any disability, liability, restriction or condition with regard to the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.”
The first prohibition is with regard to access to shops, public restaurants, hotels and places of public entertainment. This prohibition is applicable not only to “State” but also to private entities. Thus, no citizen can be denied access to any shop, public restaurant, hotel or any place of public entertainment such as a cinema hall. However, there are no restrictions on other issues such as with regard to employment in a private company.
The second prohibition is with regard to the use of wells, tanks, bathing ghats, roads and places of public resort which are maintained wholly or partly out of State (i.e., Government) funds or which are dedicated to the use of the general public. Again, there is nothing in this prohibition that stops discrimination on the ground of religion, etc., in the matter of employment in a private company.
Thus, it can easily be seen that Article 15 of the Constitution does not place any prohibition on a private company in the matter of selection of its employees.
Then, there are four articles in the Constitution under the heading of “Right to Freedom of Religion” – Article 25 (Freedom of conscience and free profession, practice and propagation of religion), Article 26 (Freedom to manage religious affairs), Article 27 (Freedom as to payment of taxes for promotion of any particular religion) and Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational institutions). Likewise, there are two articles in the Constitution under the heading of “Cultural and Educational Rights” – Article 29 (Protection of interests of minorities) and Article 30 (Right of minorities to establish and administer educational institutions).
However, the provisions of the aforesaid six articles, which relate to the secular character of the Constitution, are not relevant for the purposes of the present discussion, except clause (2) of Article 29 which may be of some relevance and is therefore reproduced below:
“(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”
A plain reading of this provision shows that the prohibition contained in this Article is confined to admission into educational institutions, and that too when such educational institutions are maintained by the State or receiving aid out of the State funds. Therefore, even this provision also does not place any prohibition on a private company in the matter of selecting its own employees.
There is nothing specific in Part IV (Directive Principles of State Policy) of the Constitution that places any type of prohibition on a private company in the matter of selecting its own employees. In any case, the Directive Principles of State Policy are not enforceable by any court and these principles are to be kept in consideration by the State while making laws or in the governance of the country.
The next provision, that can be said to be of some relevance for the purposes of the present discussion, is Article 51-A of the Constitution, which was inserted in the Constitution by way of the 42nd Amendment, which has been criticised time and again in the manner in which this Amendment was carried out during the emergency period. Nonetheless, the relevant extracts of Article 51-A are reproduced below:
“51-A. Fundamental duties.—It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
*** ***
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
*** ***”.
This Article defines certain fundamental duties of every citizen of India. Clause (a) of this Article requires the citizens to abide by the Constitution and respect its ideals and institutions. The provisions contained in Article 15 are part of these “ideals”. However, as we have seen above, Article 15 does not place any prohibition on a private company in the matter of selection of its employees. Therefore, clause (a) of Article 51-A is also of no help in this regard.
Clause (e) of Article 51-A requires all citizens, inter alia, to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious diversities. Though it may be a far-fetched idea, it may be argued that this clause casts a duty on the citizens to promote harmony and the spirit of common brotherhood without bothering for religious diversities. But, I am of the considered opinion that this clause cannot be overstretched to imply that a private company cannot select its employees as per its own choice. It cannot be said to imply that it prohibits religious discrimination by citizens. This is because if it can be said to prohibit religious discrimination in the matter of employment by a private entity, then it can also be said to prohibit religious discrimination in the matter of, say, marriages, adoption, etc. For example, can it be said that if a person “A” belonging to Hindu religion proposes to marry another person “B” belonging to Muslim religion, then “B” is prohibited from discriminating against “A” on the grounds of religion and is forced to marry “A”? If this is not possible, then it is also not possible to say that a Muslim person is forced to employ a Hindu person, or vice versa, in view of the aforesaid clause (e) of Article 51-A.
It is also pertinent to point out that “employment” in a private entity is by way of “contract” between two private parties, much like “marriage” and other personal affairs, and it is not by way of “the force of statute”. Two private persons are free to “contract” in any manner they like. The State cannot force them to enter into a contract of a private nature with a particular person or with a person of a particular religion. It is a freedom of choice given to every citizen. For example, if a Muslim opens a shop, the State cannot force him to employ a Hindu or a Christian, or for that matter even a particular Muslim, in the shop. He has the complete freedom to employ his relative or friend or any other person of his choice. He has the full freedom under law to employ a person in whom he can have full confidence as per his own personal value system. The State cannot intrude upon this freedom in such private matters that is enjoyed by private individuals or private companies.
In any case, the fact remains that, as of today, there is no law, as far as my knowledge goes, that forces private individuals or private companies to select their employees in a particular manner, including without discrimination on grounds of religion. Let me reiterate that I strongly believe in secular values and equal respect for all religions. I also believe that merit, and not religion, should be the basis for selecting employees. This is what is the ideal situation. At the same time, as mentioned above, the law does not make it binding or mandatory that you cannot select your employee of your choice.
Of course, when it comes to employment under the State, the legal position is entirely different and there is a complete prohibition on discrimination on the grounds of religion. However, such prohibition on discrimination on the grounds of religion is not applicable to employment under a private entity. There is no such law in so far as my knowledge goes. Whatever legal provisions were of some relevance in this regard, I have quoted above. There is no other relevant legal provision in this regard as per my knowledge. And, the objective is very clear. Even private person (individual or a private company) must have complete freedom to select and employ any person of his choice in his private affairs or private business. The State does not intrude upon this freedom.
In the above case, where a Muslim MBA student Zeeshan Khan was refused employment by a private company namely, Hari Krishna Exports Pvt. Ltd., on the ground that he is a Muslim and that the particular job was available only for non-Muslims, I am of the considered opinion that the company has acted in a rude and also a crude manner even though it has not violated any legal provision. It would perhaps have been advisable for the said company to politely decline the employment to the said person giving any non-controversial valid reasons. However, merely because the said company (or, an employee of the company) used some inappropriate or inept language to deny employment (for which there was no prohibition under law), it cannot be said that the company has done something wrong in law.
Another aspect of this case is the registration of an FIR by Mumbai police against the said company reportedly under Section 153-B of IPC for the said alleged “religious discrimination”. This section is reproduced below:
“153-B. Imputations, assertions prejudicial to national integration.—(1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,—
(a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or
(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or
(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons,
shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Whoever commits an offence specified in sub-section (1), in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.”
Frankly speaking, I do not find anything in the above section which can apply to the above act of the said company and make it an offence under Section 153-B IPC or otherwise. The company in its email, merely stated that the said job is only for non-Muslims. Even if this language was inappropriate and impolite, how does it make out an offence under Section 153-B of IPC? The attempt of Mumbai police in registering the said offence against the company is ridiculous and appears to be a knee-jerk reaction to media hype on this issue. I reiterate that in my considered opinion, howsoever undesirable the language used by the company might have been while refusing employment to the said Muslim youth, there is no violation of any legal provision, much less any offence being made out in this act. In fact, protection of the fundamental rights guaranteed under (a) of Article 20 of the Constitution is available to the company in respect of this offence registered by Mumbai police, which lays down as under:
“20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
This matter shows as to how media hype can create situations that are not mandated under the existing laws and/or the Constitution.
Before I end, let me again put the disclaimer that I have tried to discuss only the constitutional and legal issues involved in this matter and that I full respect all religions and I also feel that the language used by the said company was perhaps undesirable, even though it was legally permissible.
