The law always lags behind public opinion, and public opinion always lags behind social necessities, the sage Justice Oliver Wendell Holmes had remarked.
The repeated uproar in the media over denial of employment or housing accommodation to Muslims shows that public opinion is being built gradually but surely on these abuses.
Recent cases are shocking. Zeeshan Ali Khan, a 22-year-old MBA, was denied a job by a Mumbai firm because he was a Muslim. A 25-year-old public relations professional, Misbah Nayeem Quadir, employed by a consultancy firm, was forced to vacate a flat in Mumbai because she was a Muslim. She was told, “The builder does not allow Muslim tenants in the building.”
Things are no different in Delhi. Muslims find it difficult to find a place to rent or buy in upscale localities. They are forced to confine themselves to Muslim ghettos. IT professional Azam Raza Zaidi was turned away twice when he went house-hunting in an upscale area, and in a residential society in Noida. Farah Zeba, an MBA in finance, had a similar story to tell. She was bluntly told to look for a house in only “your Muslim areas”, like Jamia Nagar, when she went house-hunting. Alarmingly, according to Tasleem Ahmed Rehmani, president of the Muslim Political Council of India, there has been a sharp increase in this kind of discrimination in the last 30-odd years.
Interfaith couples face similar problems. Nor is religion the only ground for discrimination. Last May, a 27-year-old businessman was told that he could not buy a flat in Malad in Mumbai because he was a “Maharashtrian”.
The Protection of Civil Rights Act, 1955, criminalises such abuses, but only if they stem from the practice of “untouchability”. But surely the law cannot be helpless if the abuses have their roots in religious prejudice instead. This is not a private affair between one citizen and another. It touches the secular basis of our nationhood. The UPA government had drafted the Equal Opportunities Commission Bill. But the NDA government is not in a great haste to secure
However, if Parliament remains inactive, the judiciary would be well within its powers to intervene. It is the state’s duty to provide houses for the citizen, which is why state corporations are set up to build houses. The right to work cannot be denied either.
In each case, the private sector undertakes activities that are properly the state’s concern. Even in that haven of private enterprise — the United States — the Supreme Court developed the doctrine of “businesses affected with a public interest” as far back as in 1876. Thus, the rental of houses in the city of Washington during wartime was held to be such a business. Abuses by such entities, in housing or employment, are amenable to judicial correction even in the absence of legislation.
As part of his civil rights programme, US President Lyndon B. Johnson prodded Congress to enact the Fair Housing Act, 1968, to prohibit discrimination in housing on the
basis of religion. The courts have been astute enough to strike down laws and practices that seem to be “neutral” but are, in fact, designed to discriminate on religious grounds.
In a landmark ruling, as recently as on June 1, the US Supreme Court ruled (8-1) in favour of a Muslim woman who was denied a job at a clothing store because she wore a headscarf for religious reasons. This, despite the fact that the store had a “look policy” for members of its sales staff “intended to promote the brand’s image, which had been described as youthful and preppy”. But her rejection violated the law.
World opinion has developed a strong aversion to religious discrimination. The Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, adopted by the UN General Assembly, reflects that. Its Article 4 casts a clear duty on states to actively legislate against discrimination. This was declared over three decades ago on November 25, 1981. The courts cannot ignore it; for they are part of “the state”.
The writer is a constitutional expert and commentator