'Religious freedom claims must be balanced against rights of others'

Tarunabh Khaitan

Tarunabh Khaitan is an Associate Professor and Hackney Fellow in Law at Wadham College, University of Oxford, currently on special leave for four years from September 1, 2017. During this period of leave, he is a Future Fellow at the University of Melbourne to work on his research project on the resilience of democratic constitutions, with a focus on South Asia.

Author of A Theory of Discrimination Law (OUP, 2015), Khaitan helped draft the Anti-Discrimination and Equality Bill, 2017, introduced by Shashi Tharoor as a Private Member’s Bill. He established the Indian Equality Programme in late 2018. Funded by Letten Prize, it encourages capacity-building to support early academics with an interest in Indian equality, anti-discrimination law and/or comparative law.

In this interview, he shares his views on the controversy triggered by a tweet from a customer (Amit Shukla of Jabalpur) of Zomato saying that he had asked the food delivery app to cancel his order because the delivery executive assigned to him was a Muslim. Zomato refused to defer to the customer’s demand to change the executive. “Food has no religion,” it said. Excerpts from the interview:  

What, according to you, does this controversy suggest about social relations in India today? Are we becoming less and less cosmopolitan in our outlook? What are the reasons for this decline in our social attitudes?

There is some emerging research to show that while the normalisation of bigotry in a society's public discourse does not necessarily change existing social attitudes—at least not dramatically—it does make the expression (through speech and action) of existing discriminatory attitudes more likely.

The Madhya Pradesh Police has served a notice demanding an undertaking from Amit Shukla that he would not spread religious hatred. But he is unrepentant, saying he has a right to choose (the delivery person who belongs to Hinduism) during this pious month of Shravan. Is not Shukla’s understanding of one’s rights in a secular country myopic? Should the M.P. Police not have registered a case against him under the IPC for spreading communal discord?

I need to know more facts in this particular case to be able to say whether his actions amount to spreading religious hatred or to a legitimate exercise of religious freedom. Intention and sincerity are key for this determination, which can only be established in a proper trial. As general principles, I can say the following: 

(i) we should be very slow to use criminal law to target discrimination, especially because it is often ineffective, if not counter-productive; 

(ii) secular countries also have an obligation to protect religious freedom of natural persons so long as the claim to such freedom is sincere and plausible; 

(iii) as I have argued elsewhere, religious freedom claims should only be available against the state and not against other private persons;

(iv) even when claimed against the state, religious freedom claims must be balanced against the rights to others, including their right to not be discriminated. 

  Does not the delivery boy, Faiyaz, have a ground to complain against discrimination by Shukla, and what about the state's failure to protect him from such discrimination on the ground of religion?

As a moral matter, the customer's conduct was discriminatory. In a context where Muslims face discrimination in vast swathes of public and private sectors, the conduct expresses an affirmation of their second-class citizenship status. The hurt and the disadvantage it causes cannot be denied, especially because it is all too common. As a matter of Indian law, unless the conduct satisfies the high criminality threshold of inciting religious hatred, the conduct is not prohibited. Unlike most other established democracies, there is no comprehensive civil anti-discrimination law in India.

Under the proposed anti-discrimination law, first brought as a Private Member's Bill by the Congress MP Shashi Tharoor in 2016 and currently by the Centre for Law and Policy Research, Bengaluru, would Shukla's conduct be deemed an offence? If so, what are the remedies Faiyaz or those who represent him can avail themselves of under the proposed law?

Unless it can be credibly shown to be a legitimate exercise of religious freedom (and I doubt very much that it can be, as Indian law only allows religious freedom claims against the state, and that too only to protect “essential practices” of a religion), the conduct is likely to fall within the provisions prohibiting boycott of particular groups under the proposed law. A vast range of remedies could be available, including injunction, damages and a protection order.

Zomato’s founder, Deepinder Goyal, has tweeted: “We are proud of the idea of India — and the diversity of our esteemed customers and partners. We aren’t sorry to lose any business that comes in the way of our values.”  Many have applauded his stand. On the contrary, we have seen reports of TikTok suspending three user accounts and removing a video on lynching in Jharkhand on the basis of a complaint from a Shiv Sena activist. Surf Excel faced a backlash for its advertisement intended to promote communal harmony. Does Goyal's act of courage have a message in these troubled times?

Good for Goyal to show moral courage. History will judge us all for how we treat our fellow beings. 

Zomato's stand has invited a backlash with many giving its app 1-star rating.  How do you think companies like Zomato can meet this challenge to their business interests from users with communal bias? Should not the proposed law have some provisions to deal with such backlash?

The proposed law has provisions against victimisation to protect people from backlash for acting against discrimination. Its application will normally be limited, however. Law cannot solve all our problems—loss of business because of the bigotry of consumers is sadly one of them.