Constitutional Law Racial Discrimination in India

DR. RAM MANOHAR LOHIA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION: 2017-18

CONSTITUTIONAL LAW I: FINAL PROJECT

RACIAL DISCRIMINATION IN INDIA

Submitted To: Submitted By:

Ms. Ankita Yadav Srajika Gupta

Assistant Professor (Law) B.A.L.L.B. (Hons.)

Dr. Ram Manohar Lohiya National 3rd Semester

Law University, Lucknow Roll no 151; Sec. B

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Constitutional Law Racial Discrimination in India

TABLE OF CONTENTS

ACKNOWLEDGEMENT ....................................................................................................................................... 3

INTRODUCTION ................................................................................................................................................... 4

RESEARCH QUESTIONS ..................................................................................................................................... 4

A. Whether there is any similarity between the racism in America against the blacks and Casteism in India? . 4

B. Whether there is racial discrimination in India against foreigners on the basis of color? .............................. 6

C. Are Racism and Regionalism inter-mingling? ................................................................................................ 8

D. Whether there are anti-racism laws in India? ............................................................................................... 10

HYPOTHESIS ....................................................................................................................................................... 12

CONCLUSION...................................................................................................................................................... 12

BIBLIOGRAPHY.................................................................................................................................................. 14

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Constitutional Law Racial Discrimination in India

ACKNOWLEDGEMENT

I would like to extend my gratitude and deep regards to my teacher Ms. Ankita Yadav for giving me such a
challenging topic and also for her exemplary guidance, monitoring and constant encouragement throughout
the course of this thesis.

I would also like to take this opportunity to extend my thanks to the seniors in college who were supportive
throughout and also for their cordial support due to which the project was completed.

I am also obliged to the staff members of the Madhu Limaye Library, for the timely and valuable information
provided by them in their respective fields. I am grateful for their cooperation during the period of my
assignment.

Lastly, Id like to thank my family and my friends for their constant encouragement without which the
assignment would not have been possible.

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Constitutional Law Racial Discrimination in India

INTRODUCTION

Racial discrimination occurs when an individual is subjected to unequal treatment because of their actual or
perceived race. Racial discrimination is when a person is treated less favourably than another person in a
similar situation because of their race, colour, descent, national or ethnic origin or immigrant status. Caste-
based oppression in India lives today in an environment seemingly hostile to its presence: a nation-state that
has long been labelled the worlds largest democracy; a progressive and protective Constitution; a system of
laws designed to proscribe and punish acts of discrimination on the basis of caste, creed, race, sex etc. To the
contrary, caste-based discrimination, inequality, and oppression comfortably survive and even thrive in
modern day India.

RESEARCH QUESTIONS

A. Whether there is any similarity between the racism in America against the blacks and
Casteism in India?

The case that came to be known as Brown v. Board of Education was actually the name given to five separate
cases that were heard by the U.S. Supreme Court concerning the issue of segregation in public schools. These
cases were Brown v. Board of Education of Topeka, Briggs v. Elliot, Davis v. Board of Education of Prince
Edward County (VA.), Boiling v. Sharpe, and Gebhart v. Ethel. While the facts of each case are different, the
main issue in each was the constitutionality of state-sponsored segregation in public schools

When the cases came before the Supreme Court in 1952, the Court consolidated all five cases under the name
of Brown v. Board of Education. Marshall personally argued the case before the Court. Although he raised a
variety of legal issues on appeal, the most common one was that separate school systems for blacks and whites
were inherently unequal, and thus violate the "equal protection clause" of the Fourteenth Amendment to the
U.S. Constitution. Furthermore, relying on sociological tests, such as the one performed by social scientist
Kenneth Clark, and other data, he also argued that segregated school systems had a tendency to make black
children feel inferior to white children, and thus such a system should not be legally permissible.

In May 1954, 5 months after the arguments had concluded in December 1953, the Court assembled, and
delivered its unanimous verdict, read out by the Chief Justice:-

"We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate
educational facilities are inherently unequal"

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"In these days it is doubtful that any child may reasonably be expected to succeed in life if he is denied the
opportunity of an education--a right which must be made available to all on equal terms. To separate black
children from others of similar age and qualifications solely because of their race generates a feeling of
inferiority.

Segregation of white and colored children in public schools has a detrimental effect upon the colored children.
The impact is greater when it has the sanction of the law, for the policy of separating the races is usually
interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a
child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and
mental development of Negro children and to deprive them of some of the benefits they would receive in a
racially integrated school system.

Racism in India is also visible amongst Indian communities. Due to a large regional diversity, we find
communities pitted up against each other ideologically, or for resources. There have been many cases of North
Indian discriminating against those from the South, the mainland population isolating the North-Easterns and
a multitude of regional clashes. Do Brahmins regard Shudras as their equals? It is like the devious doctrine of
'separate but equal ' propounded by the U.S. Supreme Court in 1896.

Black people, Dalits and untouchables somehow seem to be linked to this caste system which is
discriminatory and excludes people. Indian kids smoke in public places. Yet when we smoke, we are always
supposedly smoking marijuana or weed, when there are many Indians who smoke the same. How can
Africans playing loud music be an excuse to beat them up and complain to the police when Indians do the
same? I am not saying black people dont smoke weed or dont do drugs but isnt that true of others too? So,
why single us out? Why do people here become aggressive when they see us on the streets? Students from the
Northeast face the same problems like us.1

It is true that there is still racism in some parts, and among some people, in America, just as there is still
discrimination against Dalits in India. In a scenario where the country is so fragmented within itself, a
foreigner seems even more alien, and a common enemy of all.2

In India we follow the principle of separate but equal in the form of Reasonable Classification under
Article 14 of the Indian Constitution. However, the major and the most significant difference between the

1
Is India a Racist Country? Retrieved October 18, 2017 from http://www.thehindu.com/opinion/op-ed/is-india-a-racist-
country/article17854153.ece
2
India has Been Ranked As One Of The Most Racist Countries In The World, Here's What Makes Us So. Retrieved October 18,
2017, from http://www.youthkiawaaz.com/2014/09/racism-in-india/.
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Constitutional Law Racial Discrimination in India

two is that in India the discrimination is a positive discrimination aimed to achieve the betterment of a
particular group. For example special laws and certain benefits to the schedule casts/tribes and OBCs, special
provisions for women. The Honble Supreme Court upholding this doctrine in plethora of cases has held that:-

In our opinion Article 14 of the Constitution does not take away from the State or its instrumentality the
power of classification, which to some degree is bound to produce some inequality.3

In order, however, to pass the test of permissible classification, as has been laid down by the Supreme Court
in the catena of its decisions, two conditions must be fulfilled; (1) that the classification must be founded on
an intelligible differentia which distinguishes persons or things that are grouped together from others left out
of the group and (2) that the differentia must have a rational relation to the object ought to be achieved by the
statute in question4.

Like the Constitution, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the
SC/ST Act) seeks to protect the interests of certain minorities In India. As one of the foremost anti-
discrimination legislations in India, it is similar to an anti-racism legislation in the sense that it protects a
certain class of people from the ones outside of it.

Thus when we see the day to day affair in India, it is prominent that Indians passively or actively follow the
separate but equal doctrine in a manner to discriminate amongst the race and caste. We observe the
Segregation between the upper caste and lower caste prominent in the Society. However when we observe the
same doctrine in the Indian Constitution under the aegis of reasonable classification, we notice that it is
devised to protect the same segregated race and caste and help them to uplift and bring equality in society.

B. Whether there is racial discrimination in India against foreigners on the basis of

color?

As Alfred Adler, an eminent psychologist postulated, superiority complexes are essentially inferiority
complexes in order to mask feelings of insecurity.

In India, however, post-colonial rule hasnt been much of an influx of different nationalities settling down for
work and living here. Therefore, when one encounters foreigners, they are immdiately viewed as an outsider

3
State of Bombay v Balsara, AIR 1951 SC 318.
4
Gopi Chand v Delhi Administration, AIR 1959 SC 609
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and beyond the Indian social fabric. This xenophobia leads to hostility and alienation as they dont fit in
Indian standard norms and societal framework.5

Time and again there have been instances of discrimination against black skinned people in India, some of
which are listed herein. In Hyderabad, a 23-year-old male Nigerian student was beaten up with a rod and
hospitalized after a tiff over a parking lot. In the south Delhi area, three separate attacks took place, when a
group of men with bats and rods launched allegedly unprovoked attacks on nine African nationals, four men,
four women and a boy. In February 2016, there was a mob attack on a Tanzanian student in Bangalore. The
young woman was stripped and paraded in front of onlookers. That time, the Indian government created a
Police-African Students Community platform, for regular interaction so that similar incidents do not occur
again The incidents did not just begin in 2016. In March 2015, men from Ivory coast were targeted in
northeast Bengaluru where locals reportedly found the African community to be a nuisance. In September
2014, three male students from Gabon and Burkina Faso were attacked by a mob at a Delhi metro station for
allegedly cat-calling women, an allegation which was denied by them. In January 2014, Ugandan women
were molested during a raid on drug and prostitution rackets in Delhi, led by the Aam Aadmi Partys
cabinet minister, Somnath Bharti. In April 2013, Yannick Nihangaza from Burundi was attacked by seven
men in Punjab, hospitalized and went into a coma, from which he recovered a few months later.

Many Indians do behave in a racist and occasionally a violently racist fashion to people darker-skinned than
them. There are insulting names for Africans, African-Americans and Caribbeans, all of whom may be jokily
referred to as bandar" (monkey) by grinning urchins and yokels. And there is the now-derogatory term
habshi", a corruption passed down through the ages of the word Abyssinian". Back in the 1990s, a black
BBC reporter on assignment in India described the monkey taunts that accompanied his passage through a
small town. He was alternately appalled and amused but didnt come to any harm. That was before the age of
social media, when racist excesses didnt easily become an embarrassment" on the international newsfeed. 6

While discrimination against people with Mongloid features occurs majorly and must be addressed, it is also
important to note that racism in India isnt confined to such instances. Various other cultures too have been
marginalized by Hindi speaking North-Indian races. The fairer skin of these races is deemed superior and thus
desirable. The omnipresence of fairness products in India is a manifestation of the commonly held notion of
darker the skin more inferior the race, further endorsing the deeply pervasive racial differences.

5
India has Been Ranked As One Of The Most Racist Countries In The World, Here's What Makes Us So. Retrieved October 18,
2016, from http://www.youthkiawaaz.com/2014/09/racism-in-india/
6
Racism is a clear and deadly reality in India | The National. Retrieved October 07, 2016, from
http://www.thenational.ae/opinion/comment/racism-is-a-clear-and-deadly-reality-in-india
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Constitutional Law Racial Discrimination in India

Advertisements of these products promulgate the societal conviction of a hierarchical system where people
with fairer skin are deemed inherently superior. The recent banning of fairness advertisements may be said to
be directly correlated to debunking race. South Indians have customarily been dismissed as Madrasis.
Racism in India is manifested in day to day jokes and culture. Even mainstream Bollywood movies have been
seen to propagate racism.7

C. Are Racism and Regionalism inter-mingling?

Even as we speak of racism that Indian citizens face within India, it is important here to dispel certain
misconceptions. It is commonly believed that only people coming from Northeast are likely to face racist
abuse. Without much verification, victims of racist hate crimes are therefore immediately reported to be from
North East. So the issue of racism is sometimes deliberately confounded with the issue of regionalism.
Although most cases of racial discrimination in metro cities are faced by the people from northeast states
because they comprise a larger chunk of migrant population, it is important to note that even among them, it is
mainly those with mongoloid features that end up being discriminated the most.

For instance, a Bengali migrant from Tripura will face less discrimination than a Manipuri or a Naga as the
former might face the problem of regionalism but latter will bear the brunt of racism and regionalism. Racism
is the not limited to people from North East because non-North-eastern people like the Gorkhas, Ladakhis,
and Tibetans who have Mongoloid features also face the same degree of contempt and discrimination.8

Surprisingly, every act of such discrimination irrespective of which community it affects, receives a blanket
labeling of a North-eastern issue. This by itself shows the extent of bias and negligence inherent within the
society.The non-recognition of identities other than mainland Indians, south Indians (often derogatively
addressed as Madrasis with utter disregard to linguistic and cultural differences among southern states) and
North-eastern; reeks of ignorance, exclusion and deliberate marginalisation.

The Case of Karma Dorjee v Union of India9 clearly explains the problems persistent with the north east
Indians regarding racism. The petitioners are advocates and have initiated these proceedings under Article 32
of the Constitution, in public interest for guidelines to be set down to curb acts of discrimination against

7
The Racism Quandary. (2014). Retrieved October 09, 2016, from https://jilsblognujs.wordpress.com/2014/09/14/the-racism-
quandary/
8
Racism in India is Prevalent in Many Ways. (2017) Retrieved October 27, 2017 https://www.youthkiawaaz.com/2017/02/racism-
in-india-an-existential-hazard/
9
Karma Dorjee v Union of India, [Writ Petition (Civil) No.111 of 2014].
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persons from the north- eastern states. They have drawn attention to the discrimination prevalent in society
against citizens of the nation drawn from the north-eastern states. Such acts of discrimination violate the
fundamental duty under Article 51A(e) which is : "to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women".

In order to support the plea with factual details the petitioners have adverted to instances which were reported
in the print media since 2009. On 26 October 2009, a single woman is alleged to have been burnt to death in
the kitchen of her home by a stalker whose unwelcome advances she had rebuffed. On 17 April 2012, a young
student from Manipur is alleged to have died after being assaulted in a hostel. In August 2012, panic is alleged
to have been created amongst a community of persons residing in Karnataka as a result of the circulation of
hostile messages on social media.

On 29 May 2013, a young Manipuri girl is alleged to have been murdered in a rented apartment in the national
capital. On 25 January 2014, two young women from the north-east were subject to racial taunts and
molestation and soon thereafter on 29 January 2014, a young student was racially ridiculed and assaulted to
death in the Lajpat Nagar area of New Delhi. These instances have been alluded to not with a view to seeking
the intervention of the court in specific cases (the law has been set into motion to deal with such instances of
hate crime) but to establish the need for the issuance of guidelines which will bring about a systemic approach
to addressing the problem.

The relief which the petitioners seek is a mandamus directing : The Union Government as well as the States to
formulate a mechanism to deal with racial atrocities; Directing the Government of Delhi to constitute a special
investigation team headed by a former judge of this Court to investigate into atrocities committed in specific
instances; Directing the Union and the States to frame a proper mechanism to deal with cases of racial
intolerance and discrimination; and To all authorities to undertake programmes for inculcating awareness and
to sensitise both the public and the law enforcing machinery.

Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted
by the United Nations General Assembly on 21 December 1965. India ratified the Convention in 1968. The
Convention has come into force on 4 January 1969.

Furthermore, In order to deal with the concerns of persons hailing from the north- eastern states and residing
in different parts of the country, particularly in the metropolitan cities, the Union Government constituted a

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Committee on 5 February 2014. The Committee was chaired by Shri M P Bezbaruah, a member of the North-
eastern Council. After consulting various stake holders, the Committee submitted its report to the Union
Ministry of Home Affairs on 11 July 2014. The Committee categorised its recommendations into three
categories: immediate measures which need to be implemented within six months to one year; short term
measures which need to be implemented within a period of one to one and a half years; and long term
measures which need to be implemented within a period of one and a half to two years.10

D. Whether there are anti-racism laws in India?

Article 15 of the Indian Constitution provides that the State cannot discriminate on the basis of, among other
things, race. However, the practical applicability and enforceability of this Article on crimes of a racial nature
must be scrutinized. Due to its status as a fundamental right, only crimes perpetuated by State can find relief
under the article. Thus Article 15 prima facie fails to protect victims of race based crimes committed by
private individuals.

Under the Indian Constitution, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
(the SC/ST Act) seeks to protect the interests of certain minorities In India. As one of the foremost anti-
discrimination legislations in India, it is similar to an anti-racism legislation in the sense that it protects a
certain class of people from the ones outside of it. However, while the SC/ST Act protects on the basis of
caste, an anti-racism law would protect on the basis of race. Though these two classes of people do often
overlap, there are communities which fall outside the purview of one but not the other. Such victims would
have no specific recourse in law, and would have to move for relief under the general provisions of Article 15
of the Indian Constitution. These might include tribes such as Gonds of whom only a fraction are classified as
Scheduled Tribe, as well as whole divisions of racial minorities such as those with Mongloid features.

This same directive provided that the use of the term chinki could beget a penalty of imprisonment for up to
five years. That the use of a racist slang, no matter how offensive, can lead to an imprisonment of five years
has also been condemned. Though the laws punitive ramifications seem to be unnecessarily harsh, there can
be no doubt that this law, if properly implemented, would severely discourage race based offences- if only
against Northeastern Indians. However, for a law to be properly implemented in India, the police first have to
be convinced of the legitimacy of the law. It has been argued that the problem of institutional racism is when
police try to suppressor dismiss the crime as insignificant. There is a tendency to cast aspersions on the
character of the victims or complainants and refuse to register first information reports, or of putting

10
Retrieved October 26, 2017 from https://thewire.in/87298/supreme-court-northeast-racial-violence/
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Constitutional Law Racial Discrimination in India

unnecessary pressure on the victims to withdraw the case. Indian police have been recognized to be strongly
biased against North-Eastern Indians. Some have been documented rejecting the possibility of rape of North
Eastern women on the grounds that all of them are habitually prostitutes. Since the implementation of any law
is strongly reliant on the police forces, it is to be questioned whether this amendment would have any tangible
effect on the situation.

Though this distinction between anti-racism laws and anti-caste discrimination is apparent prima facie, the
problems due to the distinction are slowly disappearing. A recent directive from the Ministry of Home Affairs
declared that all offenders guilty of atrocity against North- Eastern Indians were to be charged under the
SC/ST Act. This gives the impression that a certain race of Indians or those with Mongloid features havebeen
given protection under the SC/ST Act, despite their not belonging to the categories enumerated in the Act.
However, this would not create a precedent of giving relief to victims of racial discrimination belonging to
other races outside of the SC/ST bracket. The rationale of the Ministry of Home Affairs was of the view that
since most North- Eastern Indians are members of the Scheduled Tribes, they could be protected as a group.
Consequently, a person outside of the North-Eastern community who was a victim of crimes based on racial
discrimination would have no recourse under the SC/ST Act unless they are from a community that is majorly
composed of members of the SC/ST communities.11

11
The Racism Quandary. (2014). Retrieved October 09, 2016, from https://jilsblognujs.wordpress.com/2014/09/14/the-racism-
quandary/
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Constitutional Law Racial Discrimination in India

HYPOTHESIS

There is a need of anti-racism law in the Constitution of India.

Color based discrimination is prevalent only against foreigners and not among Indians themselves
in India.
Contrary to color based discrimination, there is prevalence of caste based discrimination in India
and hence laws for the same are present in the Constitution and subsequent legislations.

CONCLUSION

Unlike the UK, USA, and other foreign countries, India is not subjected to racial discrimination on the basis of
skin color of the individual. Such a discrimination on the basis of black and white skin in not prevalent in
India per se. However, India still continues to be a racist country owing to the prevalent discrimination against
black skinned foreigners. Also, there are many other forms of racial discrimination in India like discrimination
on the basis of caste, religion, race etc. this simple implies that there is no specific law in the Constitution as
well which protects the people in India from discrimination on the basis of color. Even Article 15 doesnt
include any provision for the same.

The apex court, which dealt with several incidents of racial discrimination and crimes against the people of
northeastern region, said, The involvement of the law enforcement machinery is alone not sufficient to resolve
the problem.
Mindsets have to be changed including in universities, colleges and educational institutions, places of work and
in society. Sensitivity and inclusion have to be fostered. In order to achieve this, greater awareness of the history
and the rich cultural traditions of the northeast is required to be inculcated. The problems faced by persons from
the northeast traverse a whole range of issues, from the mundane issues of daily life to matters of education,
employment, social security and the fundamental right to live in dignity.

To deal with racism, we could first begin with school education. This crucial realm is one where ideas of
the false basis of race and racism are almost never touched upon. While it is more difficult to influence
attitudes in the domestic sphere, early education is an important field for providing the basis for
independent and critical thought. But our social science school books continue to deal with tribes a
category that flows on to blackness in general in terms of their proximity to civilisation. The term itself
its bloody history, for example is hardly ever examined. We are willing to put up with the uncivilised
as long as they know their place. We might also consider another strategy for the present. Our cities are
now places where we increasingly have declining tolerance for strangers. We primarily extend courtesies to
those we know, and exhibit hostility to those outside our circles of familiarity. Do we not need an education
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on how to live with strangers? Accounts of the past fascinating and important in themselves are about
the past. The past is, actually, another planet and cannot be a guide to what is to be done now.
The present laws against racial discrimination in India are neither comprehensive, nor are they sufficient to
combat the race based crimes in India as showed above. A new law, with the same deficient implementation
by law enforcement agencies would nonetheless form a very valuable piece of legislation that pro-active
judges could use to combat racism in India. Further, the simple act of having a new legislation come into
being would sensitize the Indian populace to the issues of racial discrimination still predominant in India.

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Constitutional Law Racial Discrimination in India

BIBLIOGRAPHY

India has Been Ranked As One Of The Most Racist Countries In The World, Here's What Makes Us
So. Retrieved October 18, 2017, from http://www.youthkiawaaz.com/2014/09/racism-in-india/
Is India a Racist Country? Retrieved October 18, 2017 from http://www.thehindu.com/opinion/op-
ed/is-india-a-racist-country/article17854153.ece
Racism in India is Prevalent in Many Ways. (2017) Retrieved October 27, 2017
https://www.youthkiawaaz.com/2017/02/racism-in-india-an-existential-hazard/
Racism is a clear and deadly reality in India | The National. Retrieved October 27, 2017, from
http://www.thenational.ae/opinion/comment/racism-is-a-clear-and-deadly-reality-in-india

Supreme Court Gives Direction on Tackling Racial Violence Against the North-Easterns Retrieved
October 26, 2017 from https://thewire.in/87298/supreme-court-northeast-racial-violence/

The Racism Quandary. (2014). Retrieved October 19, 2017,

https://jilsblognujs.wordpress.com/2014/09/14/the-racism-quandary/

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