Sunday, January 1, 2017
We are pleased to publish this guest post by Dr. Nafees Ahmad,LL.M, Ph. D. Professor Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights from the Aligarh Muslim University of India.
Racism in India: Equality Constitutionalism and Lego-Institutional Response
The 20th century has witnessed an agenda consisting of Left and liberal Left advocacy of international human rights alongside the liberal internationalism and an entrenched anti-state rhetoric. One of the most important U.S. advocates of international human rights towards the end of the preceding century Louis Henkin opines: “ours is the age of rights”. Therefore, human right is an inalienable part of equality constitutionalism across the geo-political spectrum. The pedigree of modern idea of human rights emanates from the 19th century to protect ethnic, racial and religious minorities and fight against racism and hate crimes. Minorities’ treaties under League of Nations and instruments of International Labour Organization are the testimony to substantiate the world commitment to curb and eliminate racism in its all forms. Further, United Nations Organizations (UNO), other Inter-governmental Organizations along with many individuals of international standing like Eleanor Roosevelt (US) and Hansa Mehta (India) immensely contributed in promoting and propagating the philosophy of human right and gender equality as the core element in law-making.
Racism is a reality and it is being perennially practiced and blatantly bloated in all societies across the geo-political spectrum in World Wide Web of equality, liberty and fraternity. Racism attacks all-encompassing normative system and erodes all aspects of human values in life. Primarily, racism is the most callous and conspicuous negation of human equality ordained by the collective wisdom in divinities, spiritualties and mundanities. However, the citadels of racism are still alive and kicking in every nook and corner of the world and India is not an exception. Despite the fact, India has been a victim since its existential history of staggering stages of colonialism and imperialism whereunder racism was the inalienable part of governance trajectory. Though, today Indians in US, UK, Canada, Australia and other parts of the world are being subjected to racial crimes attributable to the emerging trends of far right-wing political discourse in these countries. Even then India is still indulges with this profane practice with impunity. India is blessed with great diversity consisting of 29 States (Provinces) and 7 Union Territories (Federally Administered Provinces). India promotes “unity in diversity” shibboleth and prides its multi-culturalism and pluralism. As per government record, there are five major races in India such as Australoid, Mongoloid, Europoid, Caucasian, and Negroid who get proportionate representation in all walks of national life in India.
Gender Equality and Constitution of India
The scenario of the present day state of gender inequalities in every walk of life is clearer than ever. Human rights are social institutions and concern the quality of social relationships, economic equities and Institutional Justicialism within the gamut of common heritage of humankind and Justicial Developmentalism. The existence of human rights encourages individuals to demand more and more for themselves with little regard for how these demands may be met or who may be expected to provide for them contrary to their ostensive onus and ontology. In the world of gender parity, the situation has attained appalling proportions as women perform more than 67% hours of work but eke out only 10% of world’s income and own only 1% of the world’s property. Women get 30-40% less than men for an equal volume of work despite the fact that they hold 10-20% administrative and managerial positions. They also make up 5% of the heads of states. But, unfortunately, 70% of the 1.2 billion people living in poverty are female. 60% of the 130 million children in the age group of 6-11 years, who do not go to school, are girls. The women constitute 67% of the world’s 875 million illiterate adults and 3 out of 5 women are illiterate in South Asia. Globally speaking, there are 50% women out of all people living with HIV/AIDS. Approximately, 35% women worldwide have been subjected to either physical or sexual intimate partner violence or sexual violence by a non-partner at some stage of their lives. However, few national studies reveal that around 70% of women have been physically or sexually abused by their intimate partners.
The Constitution of India is a document of high endowments that bequests civil liberties and human freedoms to all Indians to lead their lives in peace and harmony. Articles 14 and 15 are the most important guarantees ever envisaged by the Constitution of India whereunder Right to Equality that addresses the issues of discrimination and provide equal protection of laws in India and Article 14 further confers the Right to Equality before the law and equal protection of laws throughout the territory of India and Article 15 prohibits the discrimination on the grounds of religion, race, caste, sex or place of birth. However, the biggest irony against the menace of racism is that these rights are available to the citizens of India but only against the Indian State and not against the discrimination that is practiced and committed by private individuals. Moreover, Article 16 stipulates the equality of opportunity to all citizens of India. Further, Article 39 (a) gives rights relating to the means of livelihood sans discrimination.
There are slew of other legislations enacted under the Constitution of India exclusively designed to safeguard equality and protection against racial discrimination such as The Criminal law (Removal of Racial Discrimination Act, 1949), Protection of Civil Rights Act, 1955, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Protection of Human Rights Act, 1993. In India, the instances of racial discrimination are manifested by resorting to utter some cusswords or swearwords like “Habshi (Carnivorous)”, “Pagal (Crazy), “Kalia (Black)”, “Monster”, “Chutia (Moron)”, “Chini-Mini (From China)” and “Chinkies (Chinese like)” against people from countries of Africa, Afro-Asia and North-East India. Therefore, in 2012 government of India recommended that all states notify the term “Chinki(es)” as an offence under The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 153 of the Indian Penal Code, 1860. The Constitution of India succors the country organize itself as a single geo-political entity wedded with the core principles of human rights, diversity, federalism, pluralism and multi-culturalism.
Racial Discrimination in India and International Law
The principle of non-discrimination is fundamental to international law in its all visages. The etiology of racism and racial hara-kiri is the sham similarity of the human body with the personality. This etiology of racism germinates a misconception that gestates and generates a compendium of conflicts of ethnic, gender, religious and sexual orientations. Individually, human body is blessed with a multitude of features and characteristics that are attributed to the human body based on these sham similarities. These attributions and imputations create impediments and mistrust among the human relationships in a diversity-driven society like India or elsewhere. Under International Law prohibition of racial discrimination has been ensured in all nine core international human rights treaties and International Court of Justice (ICJ) opined in Barcelona Traction Case (Belgium v. Spain, 1970) that “prohibition of racial discrimination” constitutes an erga omnes obligation (a legal obligation which all states have an interest in ensuring). Therefore, the 1965 UN Convention on Elimination of All Forms of Racial Discrimination (CERD) defines “racial discrimination” as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Non-discrimination and equality before the law and of the law, according to UNO, constitute fundamental principles of international human rights law. Therefore, since 1967 India is also a party to CERD and it cannot back out from its international human rights obligations under Article 53 of the 1969 UN Convention on Law Treaties (VLCT). Thus, principle of non-discrimination postulates that all states must treat their citizens, subjects and nationals with equality before the law and must provide equal protection of laws.
The constitutional consolidation of rights has immensely immortalized the idea of equality which ultimately internationalized the paradigm of equality as human right. In the capitalist paradigm that operates in the USA, equality as human right can be understood in terms of economic, social and cultural rights as well civil and political rights as “All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment declares that equal protection to all person not simply to ex– slaves or black persons and the Equal protection clause could be used to protect the rights of other classes of citizens as well. Throughout the nineteenth century and the early part of the twentieth century, the court consistently interpreted the fourteenth Amendment and other constitutional provisions not to require the equal treatment of races and of men and women.
Lego-Institutional Response to Racial Discrimination
National Human Rights Commission of India (NHRC) conducted a study that revealed 54% people from North-East India do not find New Delhi a safe and secure place to live in terms of ethnic tolerance. Whereas, 67% people from North-East faced ethnic and racial discrimination in New Delhi. The living and working conditions for North-East Indians in New Delhi and elsewhere in North India are horrible and inimical and in violation of sociological constitutionalism as propounded by the Supreme Court of India (SC) in the case of Karma Dorjee & Others v. Union of India & Others (December 14, 2016) whereby petitioner had alleged that people from north-eastern region, who move out of their states in search of better opportunities in studies and jobs, were subjected to racial taunts, hate crimes and violence on a daily basis due to their physical appearance at the hands of people of their own country.
The Ministry of Home Affairs having considered the magnitude of the racial and hate crimes against the people of North-East India in Delhi constituted a committee headed by Mr. M.P. Bezbaruah on February 05, 2014 to suggest suitable remedial measures to address the impugned issue of racism and hate crimes in India. The Bezbaruah Committee had submitted its report in 2014 whereunder it was recorded that 86 percent of migrated North-East Indians have faced discrimination and harassment in Delhi that had left an indelible and humongous psychological and physical impact upon them. The Bezbaruah Committee had made drastic recommendations to be incorporated in the Indian Penal Code (IPC), 1860 to address this multi-dimensional problem of racial violence as under:
- Legal Assistance Facilities: A panel of lawyers consisting of 50% women lawyers from North-East India for legal assistance such as Legal Awareness Training for representatives and vulnerable areas of North-East Indians.
- Strengthening of Law Enforcement Agencies: Law enforcement agencies should be sensitized and trained including police personnel and minimizing the delays and quality of investigation, recruiting sufficient number of SC/ST/Minorities as police personnel from North-East India.
- Special Police Initiative: The Fast Track Courts (FTCs) must be established in India to attend racial and hate crimes. North-East Special Police Unit should have the power of a Police Station and Special Police Squad supervised by the North East Special Police Unit should be created and a Special Helpline No. 1093 for youths from North-East must be established and synchronized with PCR 100 number and Data bank of all crimes against the people from North-East India.
- Educating People about North-East India: The People of India and posterity must be educated about the history and culture of North-East India by introducing appropriate writings in the text books and NCERT should introduce certain aspects of the “Northeast Ethos” into the curriculum.
- Creating Awareness: The Ministry of Information and Broadcast must give primacy to North-East in its media coverage. The resources of North-East must have as visible faces in the visual media. Media must be cautious while covering sensitive hate and racial issues. Moreover, tourism and indigenous games of North-East should be promoted while introducing new sport schemes for the region.
These recommendations were appreciated and accepted positively and an early enforcement thereof was assured by the Government of India. However, no implementation has seen the light of day even after two years. Hence, it is quintessential to implement these recommendations by enacting an Anti-racial Law to address the mounting derogatory and discriminatory attacks on people of different races in India. However, the Supreme Court of India desisted from passing any direction on the recommendation for amending the IPC by inserting two new provisions—Sections 153C and 509A–which was opposed by the Government of India on the ground that Sections 153A, 153B and 505(2) already exist as a part of the penal provision that address the situation of racial violence and hate crimes in India. Moreover, the Supreme Court took the cognizance of the suggestion put forward by the Government of India that the proposal was under examination and said “whether the law should be amended is for the Union government to decide in its considered assessment of the situation, the nature of the problem and the efficacy of existing provisions. A mandamus to legislate cannot be issued.” Thus, SC has made the following substantial directions in the case:
- To set up a three-member panel headed by a Joint Secretary-level officer with two other members to be nominated by the Union government for enhancing the sense of security and inclusion in the people of North-East India by addressing racial violence and hate crimes.
- The panel shall have powers to ensure strict action in incidents of racial discrimination, racial atrocities and racial violence and suggesting measures to curb such hate and racial crimes.
- To emplace the efficacious monitoring mechanism suggested by the Bezbaruah Committee in its report should be implemented and “should not like innumerable instances of its ilk, languish in dusty shelves of long forgotten archives”.
- The involvement of the law enforcement machinery is alone not sufficient to resolve the problem and stressed that mindsets have to be changed including in universities, colleges and educational institutions, places of work and in society.
The constitutional construction of constitutionalism on human rights instill a sense of pride among We, the People of India, but constitutionalization thereof is subjected to prejudices in every layer of state set-up, administrative apparatus and political paraphernalia of the country. Consequently, India has become an ivory tower of iniquitous social orders and Indian society stands stratified today on the ground of being a member of a particular social group or social origin or minority or religion or race or caste or political opinion and so on so forth. It is well-established fact that India is a land that cannot survive without the democracy of diversity and majesty of multi-culturalism. Since India has become a party to 1965 UN Convention on the Elimination of All Forms of Racial Discrimination in 1967.Therefore, time has, indeed, come to have an all-compassing Anti-Racial Law to curb the menace of growing racial violence, hate crimes and xenophobia.
Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights from the Aligarh Muslim University of India where he concentrated on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA [email protected], [email protected]