Day: October 7, 2020

Is Justice Accessible To Dalit Employee In Private Workplaces?

Caste came as a shock to the international audience when the State of California filed a law suit on caste discrimination against CISCO systems. While California is trying to locate caste within the parameters of religion, one would assume that the Indian legal system is adequate to protect a Dalit against caste discrimination.  #innlive unravels the hurdles posed for ascertaining a conviction for caste based discrimination in workplace in Indian laws.

In June, the State of California sued CISCO Systems on the grounds of caste-based discrimination. The lawsuit outlined harassment faced by an Indian American employee on the basis of his caste.

California has alleged that the technology giant failed to guarantee a workplace free from hostility and unlawful discrimination. However, since Title VII of the Civil Rights Act does not mention ‘caste’, the case before the California Court lies in interpreting to read caste into an already prohibited ground of ‘religion’.

Efforts have been previously made in the international fora to prohibit caste discrimination by including it under the ambit of ‘descent’ or ‘religion.’

This instance is indicative of the persistent problem of caste discrimination in employment. While the United States lacks a legal structure that prohibits caste discrimination explicitly, in India on the other hand, caste discrimination has been constitutionally prohibited.

So the question is, does India possess enough safeguards to hold a private employer accountable for caste-based discrimination at the workplace in a court of law?

Inadequacy of Existing Provisions

The Protection of Civil Rights Act 1955 [PCR Act] was enacted to punish preaching and practicing of ‘Untouchability.’ The PCR Act outlaws enforcing a “social disability” on the grounds of untouchability in the practice of any profession.

As noted by the Supreme Court in the National Campaign on Dalit Human Rights versus Union of India, the Act fails to specifically target indirect and direct acts of workplace caste discrimination, in addition to overall poor implementation.

Due to the inadequacy of the PCR Act, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act [POA Act] was enacted in 1989. The Act enlarged the scope of criminal liability for actions not covered under the Indian Penal Code [IPC] and the PCR Act.

Though Section 4(za)(E) of the Act penalises obstruction of a member of the Scheduled Castes and Scheduled Tribes community from practicing any profession. However, the range of acts criminalised are ‘severe’ in nature.

While these provisions could be utilized to punish an individual, the larger culture and discriminatory structures underlying the working of the organization are neither addressed nor dismantled.

Discriminatory behaviour at the workplace, akin to the incidents described in the CISCO petition, are made up of microaggressions and specific non-observable moments which prima facie would not qualify as casteist. This would make it hard for incidents of caste-based employment discrimination to pass the criminal standard of ‘atrocity’ under the Act. Moreover, like the PCA Act, the POA Act has also not been properly enforced.

The laws are vague, non-specific, and fail to sufficiently engage with workplace discrimination.

Firstly, neither of the laws outline any procedure for complaints, inquiry, or the procedure after the punishment to be followed by the employee. Secondly, the provisions import criminalisation only on the individual(s) – with no focus on the role of the organization.

In his critique of anti-discrimination law, Neil Gotanda argues “when  laws  focus only on bilateral employment relations, they exclude any understanding that race has institutional or structural dimensions beyond the formal racial classification.”

Similarly, the extant provisions exclude any understanding that Caste can have institutional or structural dimensions. While these provisions could be utilized to punish an individual, the larger culture and discriminatory structures underlying the working of the organization are neither addressed nor dismantled.

On these counts, it’s safe to say that India lacks a legal framework to address caste-based discrimination in employment effectively.

There is a Right to Equality at Work guaranteed under the Constitution, and a corresponding duty on the State not to violate this right.

Though India has certain laws prohibiting caste discrimination, these laws fail to recognize the various ways in which discrimination manifests in the workplace.

Duty of the State to protect the Right to Equality at the Workplace

The Constitution not only recognizes a right against discrimination but also obligates the State to eradicate caste discrimination through labour law.

Article 14 & 15(1) recognizes the right to non-discrimination based on caste, and Article 19(1)(g) recognizes the freedom to practice any profession.

There is a Right to Equality at Work guaranteed under the Constitution, and a corresponding duty on the State not to violate this right. Flowing from this duty of the State, legislation like the Equal Remuneration Act 1976 [ERA], the Rights of Persons with Disabilities 2016 [RPD Act], and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 [POSH Act] prohibit discrimination based on gender and disability at the workplace.

The purpose of labour law is to ensure that inviolable rights are safeguarded even in the private sphere. This is evident in the scheme of the POSH Act and the RPD Act.

The rights enumerated in Part III are vertical in nature, enforceable only against the State and its instrumentalities. Hence, a claim for violation of fundamental rights guaranteed under Article 14 and Article 15(1) cannot be brought against a private employer. However, the verticality of these provisions cannot be an impediment to prohibit non-discrimination.

Part III of the Constitution casts an obligation on the State to regulate private employers and prohibit discrimination in employment.

This was the principle underlying the Supreme Court’s decision in Vishaka & Ors v State of RajasthanThe Court declared the failure of the State in regulating both private and public workplaces is violative of the petitioner’s fundamental rights under Article 14, 19, and 21.

By recognizing the lacunae in law, the Court issued the famous Vishaka guidelines – which later on led to the enactment of the POSH Act.

The purpose of labour law is to ensure that inviolable rights are safeguarded even in the private sphere. This is evident in the scheme of the POSH Act and the RPD Act.

Enacting another law is not an end-all solution for caste discrimination at work. Especially when organizations indulge in “discrimination laundering”

The Constitution asks the State to promote the educational and economic rights of Dalits and Adivasis (Article 46 and part XVI), as well as ensure just and humane conditions of work (Article 42).

Hence, there is a duty on the State to ensure that there is no discrimination on caste in any workspace. Shashi Tharoor’s Anti-Discrimination and Equality Bill 2016 and CLPR’s Equality Bill 2019 are examples of how a norm prohibiting caste discrimination in employment spaces can be framed.

Enacting another law is not an end-all solution for caste discrimination at work. Especially when organizations indulge in “discrimination laundering”– where they shape anti-discrimination laws to remove any pressure on themselves and keep discriminatory structures intact.

Nonetheless, it is a starting point in addressing a pressing social issue and an opportunity to fulfill the vision of anti-discrimination enshrined in the Constitution.

(Author Riddhi Shetty is a student at NALSAR University of Law. Views are personal.)

Schools Reopening In Maharashtra decided After Assessing The Situation

While the Union Education Ministry has issued guide­ lines to States on the reopen­ ing of schools and colleges from October 15, Maharash­ tra Minister of Higher and Technical Education Uday Samant on Tuesday said that in the current pandemic sit­ uation in the State it was not conducive to do so.

The Minister hinted that Maharashtra would be reo­ pening schools and colleges only after assessing the CO­ VID­19 situation.

“The decision to open up colleges will have to be based on the current spread of COVID­19 in the State… Maharashtra’s pandemic sit­ uation has not yet normal­ ised. Hence, it will not be ap­ propriate to physically conduct classes,” Mr. Sa­ mant said after a review meeting of preparations for final year exams with the authorities of the Savitribai Phule Pune University (SPPU). He said that he had directed educational institu­ tions to stop the collection of development fees from stu­ dents as there had been no

physical classes for the last few months.

Stating that the final year examinations would be con­ ducted while taking due care of the health of the students, Mr. Samant said that two­ and­a­half lakh students would be appearing for the final year examinations un­ der the SPPU.

“Of them, two lakh stu­ dents will be taking the ex­ ams online. The rest 50,000

students will be writing the

exams offline,” Mr. Samant said, adding that all provi­ sions had been made to en­ sure that students do not en­ counter any technical problems while taking their exams and that no student would be deprived of the ex­ ams. The disabled students will be get 20 extra minutes to complete their papers.

“For those appearing physically at the 113 exam

centres, zilla parishad and Pune civic body authorities must ensure that the facili­ ties are properly sanitised,” he said.

Mr. Samant further said that practice question pap­ ers would be given from Oc­ tober 8 while a grievance re­ dressal centre would be set up to deal with any problem students might encounter.

However, a number of stu­ dents across the State, espe­ cially in rural areas, are ap­ prehensive about their online exams with several complaining about technical glitches, hall tickets, and power failure among others.

“About 60% of the stu­ dents appearing for the final year examinations are from the rural areas. They face a range of problems from er­ ratic electricity supply to poor range for mobile phones. Already, students appearing for Mumbai Un­ iversity’s final year exams have been bedevilled with poor internet connectivity and power outages with ser­ ver failure and phones hang­ ing in the middle of their ex­ aminations,” student leader Kuldeep Ambekar said.

How The Farmer Gets MSP For Crop Production?

Farmers from different villag­ es in Delhi alleged that they are not getting the Minimum Support Price (MSP) for their produce in markets and ma­ ny times, suffer losses des­ pite the Delhi government promising higher prices than the MSP.

“A week ago, I sold about 17 quintals of bajra for ₹1,250/ quintal to a middleman in Najafgarh mandi. The MSP is more than ₹2,100. But we do not get that rate and there is no government control at the mandi. Also, the government does not buy from us,” said 65­year­old Ram Kumar, a farmer from Kharkhari Jat­ mal village in Delhi.

Bharatiya Kisan Union (BKU) Delhi in­charge Viren­ der Dagar said the Delhi go­ vernment had promised them Swaminathan Commit­ tee rates for their produce, which is higher than the MSP, but they do not even get the MSP.

Naresh Kumar, Chairman of Najafgarh Agricultural Produce Market Committee (APMC), where farmers go to sell their produce, said the FCI (Food Corporation of In­ dia) under the Centre has not been procuring any produce from Delhi’s markets since 2015. He said they have writ­ ten multiple letters to the FCI

on the same, but in vain. “The Delhi government has no power to buy produce from farmers and it has no storage. If FCI buys from the farmer, then they will buy at MS. But now when a private person buys, farmers do not get the MSP in most cases,” Mr. Kumar said. He said the farmers are suffering losses

because of this problem.
On Tuesday, the BKU gave a memorandum to Chief Mi­ nister Arvind Kejriwal on the issue and he has promised to

look into the matter.

Panel report

In February 2019, the Delhi government had said they have “conceptualised” the implementation of recom­ mendations of the Swami­ nathan Committee report on farmers that “MSP should be

at least 50% more than the weighted average cost of pro­ duction” under a scheme — Mukhya Mantri Kisan Mitra Yojna.

An “Agriculture Confe­ rence on Implementation of Recommendations of Swami­ nathan Committee” was also held by Development Minis­ ter Gopal Rai. The proposed MSP, with 50% margin at the cost of production, was ₹2,616/ quintal and ₹2,667/ quintal for wheat and paddy respectively.

“The proposed MSP struc­ ture is higher than the Go­ vernment of India MSP by ₹776/quintal for wheat and ₹897/quintal for paddy. It is likely to incur an additional liability of ₹96.38 crore, if im­ plemented,” an official state­ ment had said. The FCI was supposed to buy produce

from the farmers at the new higher MSP and the Delhi go­ vernment was to give the ex­ tra amount to the Centre. But the scheme did not work out as FCI is not buying the pro­ duce, according to Delhi go­ vernment officials.

Mr. Kumar and other farmers said their counter­ parts in Haryana were get­ ting the MSP of ₹2,150/quin­ tal for bajra. “After all my expenses in ploughing, sow­ ing, cost of manure and cut­ ting, I am losing money by selling it at ₹1,250/quintal. But what can I do?” said the farmer, who owns two acres of land.

Kamal Singh, 60, from the same village said he had sold 27 quintals of wheat at ₹1,680/ quintal, which is less than the MSP of ₹1,925/quin­ tal of 2019.Many others from the village had similar com­ plaints and said that always middlemen buy from them.

Yogesh Phalswal, 25, of Ghumman Hera village said bajra is being sold for around ₹1,400/quintal and they do not get MSP. He also showed a WhatsApp message of the purported rates of different produce being sold in the market and all prices in the list, expect for rice, was low­ er than MSP.

A Delhi government spo­ kesperson refused to res­ pond to queries.

Overcome Rancor After The End Of Legal Feuds?

IT is a fact of criminal psychology that whether the crime is detected or not, punished or not, the criminal carries the burden of the crime, which is far heavier, like in the case of the sailor who killed an albatross and carried it forever around his neck. It is possible to believe that the two court verdicts — that of the Supreme Court last November and of the CBI special court in Lucknow recently — have ended the Ram Mandir-Babri Masjid matter, technically speaking, in favor of the Hindus, and based on these two legal verdicts, there was no wrongdoing of any kind on the part of Hindu groups.

But there are two clear acts of crime committed by Hindu groups. The first was trespass on the inter- vening night of December 23-24, 1949, when the idols of Ram Lalla were stealthily placed inside the mosque, and the second was the day- time demolition of the mosque on December 6, 1992. The Supreme Court verdict declaring the site as belonging to the Hindu groups does not absolve them of the crime of tres- pass, nor does it clear them of the criminal act of demolition. The sec- ond verdict has only declared ‘lack of evidence’ against the 32 accused,

including former Union ministers LK Advani, Murli Manohar Joshi and Uma Bharti. This does not imply that there was no wrongdoing, or that there were no criminals who brought down the mosque.

The crimes remain as clear as day- light. And they remain a shameful aspect of the Ram temple agitation. Ironically, the BJP, which was at the head of the agitation and had gath- ered a crowd which its leaders could not control in Ayodhya on December 6, 1992, had the temerity and dishon- esty to move a no-confidence motion against the demolition. Using his rhetorical flourish, Vajpayee said on December 17, 1992: “I am ready to go one step ahead and ask those kar sevaks who were small in number to come forward and openly confess that they have demolished the struc- ture and for that they are prepared to face the music.” But by the time he ended his speech, Vajpayee almost justified the demolition. But not even his cunning rhetoric could wipe away the crime.

The CBI special court, which had conducted the trial regarding the demolition of Babri Masjid, ‘freed’ the 32 accused, including Advani, Joshi, and Uma Bharti, for ‘lack of evidence’. The prosecution pressed the charge of a meticulously planned crime amounting to a conspiracy. There were inherent weaknesses in a conspiracy charge because it requires to be proved that there was a clear chain of events that led from hatching the plan to executing it. Given the events preceding the gathering of around 200,000 people in Ayodhya and to the demolition that followed, it

would have been difficult to estab- lish the trail of the crime. But dem- olition remains a crime.

So, the sarcastic comments of critics that ‘no one demolished Babri Masjid’ and that it fell on its own show more anger and frustration, which is understandable, but which do not qualify to be a reasoned view. The unfolding of events on December 6 shows that the demolition was plausible given the overwhelming crowd which turned into a frenzied mob. The CBI special court did not condone the demolition because it had to fix the responsibility of who did it. This does not also mean that no one did it because the 32 accused

were acquitted.
Where legality ends, the moral and

the psychological burden of the criminals and conspirators begins. Should Advani, Joshi, Bharti, and the rest of the BJP and Vishwa Hin- du Parishad leadership own moral responsibility for the demolition? Should they apologize to the Muslim community that it was a moral wrong and a legal crime to have demolished a place of worship, whatever the dispute at stake? They should for their own sake and for the sake of communal amity in the country. Winning legal battles is not the end of the story. There is a need for gestures of goodwill to end the rancor that hangs in the air at the

end of legal feuds.
Of course, we recall Advani’s

statement at the end of the day on December 6: “This is the saddest day of my life.” Advani had clearly maintained that it was not the intention of the organizers of the karseva on December 6, 1992, to bring down the mosque. There are enough arguments, and one can even admit plausible ones, that Advani was just being hypocritical, that he was happy the mosque was destroyed. The critics of the then Prime Minister PV Narasimha Rao also claim that Rao, too, was happy in the cynical sense that the demolition had simplified the dispute. But beyond Machiavellian, or if you

prefer Chanakyan, calculations, there is a need for reconciliation between the contending communi- ties of Hindus and Muslims. The triumphalism of the Hindus must be reined in, and the resentment and despair of the Muslims should be addressed and removed.

The communal leaders on both sides have made the Babri Masjid issue a bitter dispute between the two communities. The Hindu groups can turn Ayodhya into a tourist spot, but it will never attain the sanctity of Rama’s birthplace because it was achieved through two acts of crime. There must be enough contrition on the part of Hindu groups before they can breathe easy and sleep well.

Night Cremation For Law, Order: UP Govt To SC

  • State govt claims it had intel inputs that protests could turn violent; bench terms crime ‘horrifying’

A 19-year-old Dalit gang rape victim was cremated in the dead of the night last week to avert an extraordinary law- and-order problem posed by protesters and political parties intent on stoking caste clashes, the state government told the Supreme Court, which on Tues- day described the incident as “horrible” and “extraordinary”.

A three-judge bench of the apex court was hearing a public interest litigation seeking a Cen- tral Bureau of Investigation (CBI) probe into the case.

The bench, headed by Chief Justice of India (CJI) SA Bobde, directed the state government to place on record the steps taken to ensure protection of witnesses even as the UP government acquiesced to a top court-moni- tored CBI probe into the Septem- ber 14 incident and the woman’s death on September 29 that trig-

ment. The court also asked the state to ascertain whether the family engaged a lawyer and sought details of the scope of proceedings relating to the inci- dent before the Allahabad high court. The next hearing is on October 8.

The court proceedings came a day after the state government ordered a probe into an “interna- tional conspiracy” to destablise the administration.

In a 129-page affidavit, the state government contended “intelligence inputs” pointed to political parties and organisations trying to exploit the situation on September 30 – a day after the victim died at Delhi’s Safdarjung hospital, triggering street protests.

“Intelligence inputs were specifically received late at night on September 29 that lakhs of protestors of both communities along with supporters of some political parties and media will assemble on the morning of September 30 at the village. The [Hathras] district administration took the decision to convince the parents of the victim to cremate her with all religious rites at night to avoid large scale violence,” the affidavit said.

Pressed for answers

WHAT U.P. GOVT SAID?

  • Intelligence inputs pointed to political parties and organisations trying to exploit the situation
  • Lakhs of protesters planned to assemble on September 30, gathering could have turned violent
  • Hence, family was asked to cremate the victim as per religious customs
  • There should be a CBI probe into alleged criminal conspiracy to spread caste conflict, instigate violence, and into propaganda
  • A forensic report showed that the woman was not raped

WHY IT’S UNDER FIRE

  • The family has said that they were locked inside while some members were forcibly taken for cremation in the dead of the night
  • The government took the unusual step of sealing off Hathras to outsiders, including the media
  • The initial delay in the forensic examination may have led to crucial evidence being lost

WHAT THE JUDGES SAID

“It is a horrible incident. It is

extraordinary. We want to know from you whether witness protection plan is in place. File an affidavit.”

“What is the present scope of the proceedings before the high court and how can we widen it and make it more relevant.”