For an anti-racial legislation in India

Arunabh Chowdhury

(The writer is an advocate of the

Supreme Court of India)

On the 21st of March – the day designated as the International Day for the Elimination of Racial Discrimination by the UN General Assembly, the European Commission against Racism and Intolerance likened racism to the coronavirus which "lurks unseen until it suddenly spreads and causes severe damage to individuals, families, communities, and the whole of society".

This virus needs to be checked and contained, lest it fragments our society.

We are amidst a global pandemic and the nation is under an unprecedented lockdown. Even in these gloomy and desperate times, there have been incidents of racial violence and racial discrimination unleashed on innocent citizens from the North East. A young woman from Manipur was spat upon and called 'corona' in the national capital. Two students from Nagaland in Mysore and two from Manipur in Hyderabad were denied entry into a supermarket because they allegedly looked like 'foreigners'. Jwala Gutta too has revealed how she has been trolled and abused online. These incidents indeed are a disgrace to our nation and an affront to the right to live with human dignity.

Ours is a pluralistic society- a microcosm of myriad religions, ethnicity, castes and languages. The most characteristic feature of our age-old civilization is the harmonious coexistence of unity in diversity.

India prides itself in the legacy of Mahatma Gandhi who became a beacon of hope and an inspiration to movements around the world that fought for equality and human dignity under greats like Martin Luther King Jr. and Nelson Mandela. Generations down, we have fallen prey to the same tendencies-whether it manifests in the form of racism or whether it is in the form of communalism. It is an irony and a matter of shame that the land of the Mahatma is still grappling with incidents of racial violence and racial discrimination.

With an aim to strive towards an egalitarian society, the United Nations adopted the Universal Declaration of Human Rights in the year 1948 declaring that all Human Beings are born free and equal in dignity and rights and should act towards one another in a spirit of brotherhood without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

This was followed by the International Convention on the Elimination of all forms of Racial Discrimination passed by the UN General Assembly on 22.12.1965 resolving to eliminate racial atrocities/ discrimination in all its forms and manifestations. The Convention recorded the commitment of the State parties to pursue without delay a policy of eliminating racial atrocities/discrimination in all its forms and to prohibit and bring to an end, by all appropriate means, including legislation, racial atrocities/ discrimination by any persons, group or organization. India ratified the Convention on 03.12.1968 and therefore, is under an obligation to implement it.

To eradicate discrimination of any kind, the Framers of our Constitution emphasized on "equality of status and of opportunity" 'in the Preamble and provided for the fundamental rights under Article 14 (right to equality), Article 15 (prohibition of discrimination on the ground of religion, race, caste, sex, place of birth or any of them), Article 16 (equality of opportunities in matters of public employment) and the right to live with dignity conferred by Article 21. Article 51-A (e) further imposed a fundamental duty on every citizen "to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities..."

In spite of a robust and a crystal clear Constitution, there have been an alarming increase in incidents of racial atrocities particularly on the citizens of the Northeast, which compelled the Government of India in February 2014 to constitute the M.P Bezbaruah Committee. The Committee submitted a comprehensive Report on 11.07.2014 observing that the existing criminal law regime is insufficient to deal with cases of racial atrocities. As an immediate measure, it recommended that either a new law be promulgated or the Indian Penal Code be amended, in that order of preference- making the offences cognizable and non-bailable, speedy investigation and a time-bound trial. The short-term measures recommended was to create an Information Technology system to reach out to the victims, strengthening law-enforcement agencies, creating awareness etc. As a long-term measure, it recommended that the demand for a new anti-racial law be debated and a decision be taken.

The Bezbaruah Report was considered by the Supreme Court in a Public Interest Litigation seeking framing of guidelines to deal with incidents of racial atrocities in Karma Dorjee's case (2017) wherein it held that: "The Governments, both at the Centre and the States have a non-negotiable obligation to take positive steps to give effect to India's commitment to racial equality. This commitment is embodied in constitutional rights, fundamental duties, statutory provisions and in the international obligations which have been assumed by India". The Court while recording the concurrence of the Government to implement the immediate measures of the Bezbaruah Report observed: "The Bezbaruah Committee Report should not like innumerable instances of its ilk, languish in dusty shelves of long forgotten archives. The acceptance by the Union Government is a statement of what it calls a 'zero tolerance' policy towards discrimination against Indian citizens hailing from the North-East. The court as a protector of human rights is within jurisdiction in ensuring that this assurance translates into reality".

Despite the lapse of over 3 years since the verdict of the Apex Court, the law is yet to be put in place. We cannot ignore the fact that there is a sizeable segment in our society who face discrimination on a daily basis. These victims should not feel ignored, helpless and marginalized. It is about time for the Government honoured its commitment and put in place a stringent law to curb such incidents with an iron hand. 

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