The rule of law in India is a joke. And discerning folks have known it for long.

In 1999, Swapan Dasgupta wrote:

India operates on a very simple principle: "Show me the person and I'll show you the law." Everybody, from the humblest policeman in the thana to the prime minister, knows it. There is no equality before the law. Consequently, there is no law. And there is no deterrence either.

But the tragedy of how the law works in India isn’t just in implementation or that it is applied selectively to individuals depending on their status but also in how it is applied to different groups differently. And thus let me add another principle to the one given by Swapan Da. It is this: Show me the group and I’ll show you the law.

We know for a fact that higher the status of a person in the India society, easier it is for him to get out of legal trouble. We also know for a fact that the Indian State goes soft when it comes to cracking down on transgressions of certain groups or communities - prominently the religious minorities and especially the Muslim community. What does it say about these groups? It speaks of their privileged status in society.

The treatment meted out to these communities as groups by the State is similar to how our cops treat two actors in a road accident - the fault is always assumed to be of the driver who is driving the bigger vehicle. The one with the smaller vehicle is presumed a victim almost always. Facts are secondary.

The difference between the actors in a road accident and the different communities receiving different treatment is that in the case of former injustice is at an individual level and isn’t contagious but in the case of latter, it is highly contagious and can create resentment in millions of people leading to fissures in the society and setting it up for division.

A Jain who is a baker in Chennai has been arrested for advertising on WhatsApp that he didn’t have Muslim staff and all the products were prepared by Jains. He was simply stating a fact about the religious background of his employees.

First of all, there is nothing discriminatory in what he did. He didn’t say that he won’t employ Muslims. He didn’t say he won’t bake for Muslims. There is absolutely no case to be made against him.

Nonetheless, the baker has been slapped with Indian Penal Code Sections 295A (Deliberate, malicious acts intended to outrage religious feelings of any class by insulting its religion), and 504 (Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace).

Since there was nothing deliberate or malicious or intentional in the baker’s advertisement, it is unlikely he will face a jail term but this episode had already caused him harassment.

This is only the latest in series of such incidents where shopkeepers have tried to project their non-Muslim credentials by similar advertisements or by installing hoardings with help from Vishva Hindu Parishad or by simply putting a saffron flag on their establishments. And many state governments have taken action against such shopkeepers.

While they are unlikely to result in conviction, the objective of harassment and thus deterrence is achieved to an extent.

Second, and this is what we must train our attention on, what if tomorrow a shopkeeper states that he won’t employ a Muslim for whatever reason. Should he be booked or jailed? What if he states that he would only employ a person of a certain religion only? Does the situation change in that case?

The first statement is certainly more problematic than the latter and is not allowed under the Indian constitution.

For instance, Article 15 Clause 2 clearly states that ‘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.”

But the latter “I would only employ a person of a certain religion” is considered a form of free speech at least for certain groups.

Halal butcher shops are very much legal in India. These employ only Muslim butchers who recite Islamic prayer while slitting throat of the animal.

But in that case, why shouldn’t the VHP be allowed to certify shops as ‘Dharmic’ (say) whose owners and employees are Hindus?

But what is more egregious is the way how the same mentality is followed even by the Indian State which is supposed to be secular and free from any kind of discrimination based on religion.

But the centre and states have special Minority Affairs departments which serve only a few religious groups branded as minority.

Various minority commissions acts at the centre and state level, which run on secular taxpayers money, state explicitly that only people of certain religions can be its members or chairpersons. Ditto for the National Commission For Minority Educational Institutions.

Isn’t then the issue really about

a) who is better at being politically correct. Rather than saying ‘No Muslim staff”, one can simply say “Only practicising Jains are our staff” or better simply display the names of the staff at a board in front of the shop.

a) hypocrisy, where only certain groups which discriminate positively in favour of their members are tolerated.

There is certainly an element of truth to the fact that bigotry committed by certain religions alone is Halal in India (pun fully intended) maybe because it's an essential religious practice of the said religions.

Take Halal for instance. Muslims can justify hiring only Muslim butchers by showing it as a core tenet of their religion. But can a Jain justify hiring only Jains by showing evidence from scriptures? Can a Sikh? A Hindu?

If one were to follow the current precedents set by the Supreme Court, then Abrahamic faiths have a huge advantage in this regard. (Essential religious practice test is a doctrine invented by the Supreme Court of India to protect only those religious practices which are essential and integral to the religion.)

Essentially, what this means is that ‘bigotry’ committed by certain sections alone is Halal in India (pun fully intended) merely because it's an essential part of their religion but if any other community does the same, it is treated as illegal by the law.

Jain Backer

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