in Constitutional Law
Discrimination against rape victim
Recently Ginger restaurant in Kolkata did not allow the victim of the park street rape case from entering its restaurant. Apart from protesting against such mindset, what legal action can we bring against such restaurant-managers/workers/owners?
The Park Street rape victim recently alleged that she was denied entry into the restauraunt on the ground that she was a ‘Park Street Rape Victim’. Had Ginger Hotel been a government run hotel, then if her allegation were found to be true, then it would be a violation of Article 15(2) of the Indian Constitution. Article 15(2), prohibits discrimination by the state on the ground of race, religion, caste, sex or place of birth. It states that no citizen can be discriminated on the ground of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition in: 1. access to shops, public restaurants, hotels and palaces of public entertainment; or 2. 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. However in the present case since Ginger Hotel is a private run organization, and it is not a state run entity, hence there is no violation of fundamental rights. It has been held that the objective of Part III of the Indian Constitution, which deals with fundamental rights, is to provide protection for the freedoms and rights mentioned in Part III against arbitrary invasion by the state. Writs filed under Article 32 against a private person, not being a state are not maintainable in a court of law. A writ against a private person can however be filed under Article 226 of the Indian Constitution. Sources- 1. People call for boycott of Kolkata restaurant after rape victim denied entry, The Indian Express, available at: http://indianexpress.com/article/cities/kolkata/people-call-for-boycott-of-kolkata-restaurant-after-rape-victim-denied-entry/, last accessed on 1st October, 2014. 2. Article 15 of the Indian Constitution, available at: http://www.indiankanoon.org/doc/609295/, last accessed on 29th September, 2014. 3. Position of Fundamental Rights in the world of Privatization, Globalization and Industrialization, available at: http://www.legalservicesindia.com/article/print.php?art_id=1525, last accessed on 1st October, 2014. 4. State of West Bengal v. Subodh Gopal Bose, 1954 AIR 92, available at: http://indiankanoon.org/doc/973363/, last accessed on 1st October, 2014.
The Park Street Victim, alleges that she was recently denied entry into a restaurant on the ground that she was the ‘Park Street Rape Victim’. Under Article 15(2) of the Indian Constitution, discrimination by the state has been prohibited in access to shops, public restaurants, hotels and palaces of public entertainment or 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. Article 15(2) protects every citizen where he faces discrimination on the basis of religion, race, caste, sex or place of birth. In the present case, the discrimination is on the basis of the fact that she has been raped. Whether the discrimination on this ground can be covered under the heads given under Article 15(2) has to be decided by the Courts. Possible legal action against such owners/managers/workers could be either filing of a Writ against such private parties under Article 226 of the Indian Constitution. Another possibility is looking into the terms and conditions under which such restaurant got the required license and if it talks about the rights of the consumer, it might be possible to sue such eateries for discriminating against individuals. Such incidents have been seen from historical times mostly against the scheduled castes. Consequently, legislations like the Protection of Civil Rights Act, 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 specifically penalize offenders who restrict entry to a public place on basis of a person’s caste which is applicable only when the person belonging to SC/ST community is denied entrance. No such legislation or regulation has been formulated to cater to incidents like the one mentioned in the question. Our country and especially the legislators have been very enthusiastic about the interest of the weaker section of the society often ignoring many who deserve much greater support from the government but are often ignored as is evident in this case. The only option left for the victim is to book the owner under the Indian Penal Code for the offence of wrongful restraint. Wrongful Restrain is defined under Section 339 of the Indian Penal Code. As per the provision, where a person obstructs another person from moving in a particular direction is termed as wrongful restrain. The only problem while applying this provision is that it is required that the victim must have the right to move in that particular direction. Therefore the offence of wrongful restrain is applicable only when the victim has the right to enter a particular place. In the present case, the owner of Ginger can claim that the restaurant was a private place where entry is subject to the review of the owner which can possibly mean that the victim did not have the right to be in the restaurant. This argument will make it very difficult to prove the offence of wrongful restrain. Therefore the victim in this scenario can claim protection under Article 15(2) filing under Article 226. Further, to bring in the offence of wrongful restrain it must be proved that the victim had a right to be in the restaurant which is very difficult as it is a private property and most of the restaurants reserve a right to admission.
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