The Zomato Outrage And The Need For An Anti-Discrimination Law

The Jabalpur resident, Amit Shukla has sparked outrage, after he posted on twitter about his cancelling an order with Zomato -without refund- since the latter refused to concede his demand that he be assigned a delivery person belonging to the same religion as him – Hinduism. While the Zomato Founder, Deepinder Goyal's tweet celebrating the diversity of India, and his lack of regret in losing business coming in the way of protecting secular values won widespread acclaim, the outrage in the civil society underlines the consequences of the absence of anti-discrimination law.

The Anti-Discrimination and Equality Bill, 2016, introduced in Lok Sabha by Congress MP, Shashi Tharoor, is one such law, which, if enacted, could address concerns over the discrimination by a customer against a delivery boy of a food chain. Unfortunately, the bill was allowed to lapse with the dissolution of the previous Lok Sabha.

Shukla, in his defence, has refused to repent for his tweet and has claimed a religious and a personal right to choose a delivery person of his choice during the holy month of Shravan. While Shukla's claim has no constitutional basis, it is important to examine how Tharoor's Private Member's Bill could come to the rescue of Faiyaz, the delivery boy, who faced discrimination at the hands of Shukla.

Thus Tharoor's Bill states that group membership is celebrated in a vibrant and pluralistic society such as ours, but the law must ensure that no citizen is discriminated against or put to a disadvantage on account of membership of certain groups. The Bill notes that India is at present an exception among liberal democracies for not enacting a comprehensive law against discrimination, covering both the public and the private sectors.

Under the Bill, Shukla's conduct of cancelling his order with Zomato, because the delivery boy happened to be a Muslim, would amount to prima facie directly discriminatory, as it was motivated by prejudice against a protected group. Under the bill, the religion of a person is a protected characteristic, and persons belonging to that religion constitute a protected group.

Tharoor's bill considers every communication or conduct creating an intimidating, hostile or bullying environment for a person belonging to a protected group from the point of view of a reasonable person belonging to that protected group and in the light of the relevant historical or social context.

Also, every call for or practice of any social, economic, political, cultural or other form of avoidance, ostracism, excommunication, expulsion or exclusion that is targeted against or likely to adversely affect members of a protected group is to be deemed to be boycott under the Bill.

The Bill deems as segregation every use of force, coercion or manipulation, or the threat thereof with the objective of preventing a person from interacting with, relating to, marrying, eating with, living with, socializing with, becoming friends with, visiting, working with, or contracting with another because of a protected characteristic.

The State Equality Commission, under the Bill, is empowered to issue appropriate order, declaration, injunction, relief, or award to remedy the breach of the anti-discrimination duty, diversification duty or due regard duty, including requiring a respondent to amend or abandon the discriminatory conduct, pay damages to the aggrieved persons, apologise and guarantee non-repetition of the offences in writing to the aggrieved persons.

The quantum of damages ordered against each respondent who intentionally commits direct or indirect discrimination, harassment and or victimization under the Bill shall not ordinarily be less than twice the monthly salary of a Member of Parliament at the time of making the order or rupees one lakh, whichever is higher, to each aggrieved person.

The bill envisages exemplary punishment for aggravated discrimination, which it defines as engaging in or attempting to engage in boycott, segregation or discriminatory violence. The damages ordered against each respondent who commits aggravated discrimination under this section shall not ordinarily be less than the annual salary of the President of India at the time the order is made or rupees fifteen lakhs, whichever is higher. If strictly read, Shukla's conduct may indeed amount to aggravated discrimination against Faiyaz.

Shukla's conduct violates Article 51A (e) of the Constitution which declares it to be duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities. As a violation of Fundamental Duties does not invite any punishment, those aggrieved by discrimination like Faiyaz have no remedy, except to expect the State to protect him from discrimination by other citizens, so as to let him enjoy the rights guaranteed by the Constitution to the fullest degree. The enactment of anti-discrimination law and establishment of state and Central Equality Commissions, therefore, will help the State to exercise its responsibility as envisaged under the Constitution.

The Zomato founder, Deepinder Goyal's tweet in defence of his Muslim employee, and the secular values has invited a backlash with many supporting Shukla giving the Zomato app 1-star rating, with a view to force Zomato to suffer a commercial setback as a result of its steadfast adherence to non-discrimination of its employees. Tharoor's Bill may deem such conduct of prejudiced rating an instance of indirect discrimination, and therefore, subject it to appropriate remedial action.

The Equality Bill, 2019, drafted by Centre for Law and Policy Research, envisages the creation of "Equality Courts" in all the districts, besides the equality commissions, proposed by Tharoor's Bill. The controversy over Shukla's tweet will hopefully revive the debate on the merits of Tharoor's and CLPR's Bills.  

(Image Courtesy : India Today)