With the encouragement of privatization and startups, many businesses have come up which offer unique services or the same service in a unique way. But as the businesses are becoming more and more prevalent, the question that may come to mind is, Can they refuse to offer their services to anyone?
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In restaurants, pubs, hotels, various other public places we have seen various signs such as pets not being allowed.
But in some places, we may have also noticed a sign that states “We reserve the right to refuse to anyone”. That is not just a sarcastic sign or “Just for display” but a part of restaurant policy.
So the question arises “Who can businesses refuse to provide services to?”
The Constitution of India promises that the citizens will not be discriminated against based on their gender, place of birth, race, caste, religion etc. The government of India has entered into many international treaties agreeing to protect citizens and foreigners alike from such discrimination.
However, entry to public places such as restaurants and hotels is not a protected right except for those belonging to Harijan castes or other scheduled classes of people.
Indian restaurants, bars, and hotels routinely disbar citizens as well as foreigners and discriminate on grounds of sex, place of birth, race, and religion – and sometimes even age and disability.
Article 15(2) of the Constitution of India 1949 states that
“No person shall, on only grounds of religion, race, caste, sex, place of birth or any of them, being subject to disability, liability, restriction or condition with regard to;
a) access to shops, public restaurants, hotels and places of public entertainment……”
Indian Constitution
Under American Law, a business owner has the right to refuse service to customers but some federal or state laws have made it illegal to discriminate on factors such as race, caste, sex, religion, or even national origin.
As said by Alexandra Brodsky, a civil rights attorney at National Women’s Law Centre. The Civil Rights Act of 1964 explicitly prohibits restaurants from refusing service to patrons based on race, colour, religion, or national origin.
The US is a federal democracy, therefore each state has different laws applicable within its territory. What might be illegal in one state might be legal in another.
For example, Arizona is one of six states that allow health providers to refuse service to anyone based on personal beliefs according to the National Council of State Legislatures.
The other five states include Arkansas, Georgia, Mississippi, Idaho and South Dakota. It is also known as the “conscience clause” gives pharmacists the right to refuse certain services if it violates their religious or personal beliefs.
Therefore in this case the pharmacist is not discriminating against someone but doing what he himself believes is right by his beliefs.
As Karl Marx said, ” Religion is the opium of people.”
Discrimination on the basis of one’s religion or caste is one of the biggest challenges in India.
It is illegal in India as well as the United States of America to discriminate against a person based on his/her religion. This is fairly common in the minorities in India who are denied access to restaurants and clubs and some of them are not even allowed to sit with the high castes of the society and labelling them as untouchables (“Acchut”).
This is still a major problem in the rural areas of India where the “lower caste” people are treated inhumanely by the “upper caste” people.
The feud in the Hindu-Muslim community in India is always not one to be overlooked in the crowd. Although the society has become more and more liberal and open-minded which is exactly what India needs but still there are instances when a person of a Muslim community has been denied service by the owner as he considers himself to be an orthodox Hindu and it would not be ethical for him to serve a member of the Muslim community or vice-versa.
A famous example of refusal to provide service based on political belief is when Former White House Senator, Sarah Sanders was refused service by a restaurant in Virginia simply because she was Former President Donald Trump’s Press Secretary.
Had the same thing been done in Washington DC it would have been illegal but in Virginia there are is no provision regarding refusal to provide service based on political belief. In Virginia, it might come across as rude or uncivil, but not illegal.
In India also there have been various instances where a person has been denied entrance to a particular place or service in any restaurant due to his political beliefs, he being the supporter of an opposition party as compared to that of the owner.
The Civil Rights Act of 1984, prohibits discrimination in public businesses on the basis of race, colour, religion or national origin but does not include specific sexual orientation or gender identity protections.
Whereas Colorado along with various other states prohibits businesses open to the public from denying service on the basis of race, religion, and sexual orientation.
A butcher in Colorado refused to make a wedding cake for a same-sex couple based on his personal belief.
In India also the LGBTQ community has faced various backlashes. These issues mainly occur due to the existence of an orthodox mentality in which people think that being homosexual or being bisexual is a disgrace to society and it would be a stain on their reputation if their son, daughter or brother, sister has a different sexual preference than what is normally accepted in the society.
In India people also link these types of things with religion and find reasons that it is against our religion and people go to great lengths to do what they think is right.
We have all seen signs such as “no shirt, no shoes, no service.” These rules are very much valid as trying to enforce a proper dress code is not illegal.
A New York judge dismissed a lawsuit by a man who claimed that he was unfairly kicked out of a bar in New York bar for wearing a cap that said Make America Great Again showing that he was a supporter of President Donald Trump.
Let’s say you walk into a sports bar and that bar is native to fans of the new york giants and the bar has a policy that people only wearing the New York Giants jersey are welcome inside. but a fan eager to enter the bar but not ready to wear the jersey as he himself is a fan of the Green Bay Packers and enters the bar wearing the Packers jersey.
Such a person can be refused service if the owner of the bar pleases so and it would be legal. it is just his personal beliefs and based on that he has made a rule for his business so that he can build a community where all fans of a particular team can come and hang out together.
These things are also fairly common in India. A Judge of Madras High Court was denied access into a cricket club because he was wearing a shirt and Dhoti instead of pants. Therefore it can be highlighted that it is fairly common for restaurants, clubs, and bars to refuse service or entry to anyone based on the attire of the guest.
The constitution of India guarantees equal status to all citizens irrespective of their place of birth.
However, the treatment of people from certain states, such as Bihar or North-Eastern states, in certain establishments is prima facie discriminatory.
Starting from keeping them waiting for long periods to refusing entry, use of regional slur and even eviction after admission is quite common.
In the end, I would like to say that these things are bound to happen when people of different beliefs and from different walks of life come together to live in a peaceful way.
But what makes us human is our ability to grow from our mistakes and to learn from them and come together and treat each with equality not just for the sake of the law but for a law that is greater than any other i.e., the law of humanity.
The mentality of the people is evolving and they are accepting the new viewpoints that society has to offer.
This article is written by Sparsh Jain, a 3rd-year law student at Symbiosis Law School, Noida.
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