A recent amendment to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (SCST Act) should not be overlooked.
Better late than never…the Supreme Court judges apologized to the LGBTQ community for the delay while partially de-criminalizing section 377.
In a highly diverse and secular country like India, employees of different gender, caste, and religions all work together. Things can get tricky for HR managers. Recently, a leading technology company terminated its Chief Diversity Officer basis their investigation that she discriminated against and harassed a former employee for his ‘sexual orientation. A couple of months earlier, a Canadian-based technology company faced a huge reputational risk when its employee in Pune claimed that he was discriminated against based on his religion. Most global organization adopt a zero-tolerance mindset.
While the corporate sector is still studying the impact of section 377 judgment at the workplace, a recent amendment to the Atrocities Act, 1989 should not be overlooked.
The SCST Act is considered as a social justice oriented legislation, enacted to prevent atrocities and other forms of derogatory behavior towards members of the Scheduled Castes and Scheduled Tribes. One of the unique features of this law is that the accused person cannot file an application for anticipatory bail.
Supreme Court’s Decision
In March 2018, the Supreme Court delivered a landmark decision (Subhash Kashinath Mahajan v. The State of Maharashtra AIR2018SC1498) diluting the rigor of certain provisions of the SCST Act. It was held that actions taken against ‘public servants’ on the basis of allegations under the SCST Act can only be taken with the prior written permission of that public servant’s appointing authority. Further, in the case of private citizens accused of offenses under the SCST Act, arrest can only be made with the approval of the Senior Superintendent of Police. The court also allowed for anticipatory bail, even though the SCST Act prohibited it.
In this backdrop, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018 inter alia negates the guidelines issued by the Supreme Court and restores the status quo ante of the SCST Act. In effect, it restores the bar on anticipatory bail and provides that no preliminary inquiry is required before registration of a First Information Report (FIR) against any person for an offense. Further, the investigating officer shall not require any approval for arrest.
Ask, But At Your Own Risk
Research shows that it is a common practice in India for recruiters to ask candidates personal questions during interviews. For example, hiring managers and recruiters often ask extensive information about a candidate’s family, background, caste, parents’ occupation, etc., which as such may not be necessary for the hiring decision. Once such information is collected, they cannot claim ignorance.
In the US, Title II of the Civil Rights Act, 1964 prohibits discrimination on certain grounds. As a result, employers implement equal employment opportunity policies and prohibit discrimination based on an individual’s race, color, religious creed, sex, age, nationality, ancestry, disability, marital status, medical condition, genetic characteristics (or those of a family member), political affiliation, etc.
Similarly, the Equality Act, 2010 of UK prohibits discrimination and mandates equal treatment in matters of employment as well as private and public services irrespective of age, race, religion, sex or disability.
The amendment could lead to significant risks for employers in India. By asking certain personal or sensitive questions either during the interview or in the application form, hiring managers may just be increasing the organization’s exposure to possible allegations.
The SCST Act enumerates certain offenses including inter alia “words either written or spoken or by signs or by visible representation or otherwise which promotes or attempts to promote feelings of enmity, hatred or ill-will against SC-ST members”. Offenses under these provisions are largely based on the subjective perception of the individual complainant as opposed to offenses under the Indian Penal Code, 1860 (IPC) where offenses are perceived from the standpoint of an ordinary reasonable person. The fairly wide scope of the provision seen in the context of subjective perception of the commission of an offense may lead to scenarios where candidates who are rejected or even disciplined, perceive otherwise non-threatening acts, as offenses within the SCST Act.
An offense under the SCST Act is punishable with imprisonment which may extend from 6 months to 5 years, besides a monetary fine. The complainant has the burden of proving that the accused was aware that he/she belonged to a protected community.
Offenses under the IPC impose a higher threshold on the complainant for discharging the burden of proof such as “beyond a reasonable doubt”. In contrast, the SCST Act prescribes a relatively low threshold for the complainant to discharge the burden of proof - he needs to prove that the accused had knowledge of his caste status.
While criminal liability under the SCST Act is on the accused individual, organizations may also face serious reputational risks, like the example mentioned before.
Ask What You Can Do For Your Company!
Hiring managers and employers should avoid caste based questions and discussions while interviewing candidates or while communicating with employees. This protocol should also apply while conducting background checks. Suggestive questions such as parents’ occupation, which can possibly relate to the caste of an individual, should be consciously avoided. Incorporating caste based anti-discrimination clauses in the Employee Handbook and conducting sensitization programs at the workplace, may also serve as an added layer of protection.
As it is said, ignorance is bliss!