Racial Discrimination: An Undiagnosed Sickness In India

Ritika Goyal

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Introduction

The recent COVID-19 crisis has also had a disturbing effect on an increase in incidents of racial discrimination against North-East Indians are rising too. They are being forcefully evicted from apartments in the middle of a pandemic, and denied entry to public places. This necessitates revisiting the broader issue of racial discrimination in the country itself.

Stereotyping North-eastern women as “easily available”, accusing Africans of cannibalism and spitting and throwing stones on them, are all examples of the appalling and disgraceful attitude that has been meted out to not only foreigners but North-Eastern Indian citizens, who are often treated as Non-Indians and called names because of their Mongoloid features.


Judicial Activism

While political leaders in India have tended to turn a blind eye to this systemic issue, the Supreme Court in 2014 issued guidelines to curb discriminatory acts against North-eastern citizens. It included setting up of a committee to monitor the initiatives taken by the Government to deal with the incidents of racial violence, suggest measures and ensure strict action, to receive complaints of racial abuse and forward them to National Human Rights Commission or to the jurisdictional police officer for necessary enquiry.

In Court on its Own Motion v. Union of India, the Court had taken a view that such disturbing acts threaten the integrity of the country and violate Article 19(1)(d)&(e) of the Constitution as it restricts the right of North-Easterns to freely move throughout the territory of India and to reside and settle in any part of India. It also violates Article 301 of the Constitution as natives of one State are harassed and prevented from settling and carrying their business in another State. The Judges had also suggested the possibility of bringing separate legislation for preventing the natives of one State from harassing in any manner the migrants from any other Indian States or from indulging in hate crimes against them.


Institutionalised racism:

Here it is pertinent to note that North Eastern Citizens are repeatedly subjected to institutional racism too where the police try to suppress the matter and take these incidents lightly.  There is a need to sensitize the law enforcing agencies about the people. The Bezbaruah Committee had also recommended that a North-East Special Police Unit should be created so that a single police officer-in-charge can register such complaints and give directions to various police stations. Till now, only Delhi has a separate Special Police Unit for North-Eastern region (SPUNER). The Committee has also recommended the appointment of specially designated public prosecutors and empanelling of lawyers from North-east for legal counselling of North-east crime victims.


Insufficient legal framework:

It has also been argued that North Eastern Citizens can seek protection under SC/ST (Prevention of Atrocities) Act, 1989, Article 14 and 15 of the Indian Constitution and Section 153-A of Indian Penal Code, 1860. But firstly, not all North-Eastern citizens are the members of Scheduled Caste and Scheduled Tribes Community therefore; they fall outside the purview of SC/ST Act, 1989. When we look at the Statistics of North Eastern Region released by the Government, we find that proportion of SC and ST to total population in Sikkim is 4.6% and 33.8% respectively; for Assam, it is 7.5% and 12.4%; for Manipur, it is 3.8% and 35.1%. Secondly, as observed by Bezbaruah Committee, while there are many laws, there is no one precise law that covers the type of incidents they are exposed to.  According to the Committee, in the short run, amendments to IPC should be made such as Section 153-C (Use of criminal force against people of any particular racial origin) and Section 509-A (Word, gesture or act intended to insult a member of a particular racial group or of any race), however, in the longer run demand for an Anti-Racial law should be debated. The Committee recommended that such legislation should include at least these specific provisions: 1. The offence should be cognizable and non-bailable; 2. The investigation of the FIR should be completed compulsorily within 60 days by a special cell; 3. The trial should be completed within 90 days.

A step forward in this direction was the introduction of the Anti-Discrimination and Equality Bill, 2016 by MP Shashi Tharoor. Though this bill didn’t deal exclusively with racial discrimination and included other factors like sexual orientation, marital status as well,  it is worth mentioning due to its attention to detail and acknowledgement of the fact that North-Eastern Indians and people from African origin are particularly vulnerable in India.

At this point, it is important to also look at the Model National Legislation released by the United Nations for the guidance of governments in the enactment of legislation against racial discrimination. It defines racial discrimination as “any distinction, exclusion, restriction, preference or omission based on race, colour, descent, nationality or ethnic origin which has the purpose or effect of nullifying or impairing, directly or indirectly, the recognition, equal enjoyment or exercise of human rights and fundamental freedoms recognized in international law.” The framework consists of both repressive and prevention actions by the State. Offences shall include fines, imprisonment, suspension from the public office and community service with a view to promoting good relations between different racial groups. An independent National Commission shall be constituted which will review the implementation of the Act, give advisory opinions to public and private bodies, propose amendments, conduct enquiries, act as a mediator and take legal action either on behalf of a complainant or on its own behalf. The model legislation also includes specific provisions dealing with racial discrimination in education, employment, housing and provision of goods and services.

Other States with similar kind of legislation include Australia, Belgium, Bolivia and the United Kingdom. Racial and Religious Tolerance Act 2001 and Racial Discrimination Act 1975 (Australia) criminalises racist graffiti, racist posters, racist stickers, racist comments and racially biased reporting. Anti-Racism Act, 1981 (Belgium) penalises acts motivated by xenophobia and racism. The Center for Equal Opportunities and Opposition to Racism is a public institution which is competent to deal with all the protected grounds listed in Belgium’s racism law. Law Against Racism and All Forms of Discrimination, 2010 (Bolivia), Race Relations Act, 1965 (UK) and Racial and Religious Hatred Act 2006 (UK) have been introduced too.

India is also a signatory to International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which calls for States to prevent and combat racist practices in order to build an international community free from racial segregation. Article 5 of this Convention is violated frequently. Therefore, Article 2 of the Convention calls upon States to take effective measures and review governmental, national and local policies, and amend laws to curb racial discrimination.


Conclusion:

We thus find that Courts have acknowledged hate crimes against North-Eastern citizens and the State have taken certain steps to protect them but that action largely excludes foreigners living in the country. This is the reason why a specific and comprehensive Anti-Racial Law for the whole country would be appropriate so that the Government is able to meet its international and constitutional commitments. This should be done on the lines of UN’s Model National Legislation, and drawing upon Anti-Racial statutes of other countries.


The Author is a student at NLU Ranchi

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