by Avani Chokshi
The release of the movie ‘Mary Kom’, which traces the life of the Indian boxing champion of the same name, has led to huge controversies with people questioning the decision of the creators of the film to cast Priyanka Chopra- an actor apparently without the distinctive North- Eastern physical features- as Mary Kom. Similar controversies over the division between North-Eastern Indians and their mainland counterparts have sprung up incessantly and increasingly over the past decade. These include the Nido Tania controversy, where Nido Tania, the son of an MLA from Arunachal Pradesh, was beaten up with iron rods in a shop in Delhi, leading to his death. Racial motives were attributed to the offenders. Similarly, the SMS hate campaign against North-Eastern Indians, and the assault on women from Singapore, the complaint registration of which was delayed on the grounds that they looked like North-East Indians drew cries of public outrage. On a yet another embarrassing occasion, the police failed to take any measure against assaulters of two Manipuri women. The police were stirred to action only after the public pressurised them. These are not merely isolated incidents against individuals, but are manifestations of racial profiling and discrimination, which is entrenched in the fabric of our society’s past and present.
While discrimination against people with Mongloid features occurs majorly and must be addressed, it is also important to note that racism in India isn’t 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. 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.
The pertinent question brought forth by these incidents is the necessity of an anti-racism law in India. Unlike the USA, UK, and Australian Censuses, the national Census of India does not recognise racial or ethnic groups within India, but many of the tribal groups are categorised as Scheduled Castes and Tribes. This post will seek to question whether these and other social groups in India continue to be discriminated against because of their race, and whether an anti-racism law in India is needed.
As with any legislation, there are pitfalls in having an anti-racism law. One of these is the possibility that such a legislation may infringe upon the right to free speech. For instance, the recent law against Racism and All Forms of Discrimination passed in Bolivia has been cited as an argument for introducing an anti-racism law in India. However, Article 16 of this statute is as follows, “A medium which authorises and publishes racist and discriminatory ideas will be subject to economic sanctions and to suspension of its license to function, subject to regulation.” This is clearly inconsistent with the ideal of free speech. Similarly, the Victorian Racial and Religious Tolerance Act (2001) in Australia has proved controversial on the same grounds.
There are several domestic laws that aim to eliminate race-based discrimination. An analysis of these provisions and their shortcomings would better highlight the need for a comprehensive anti-racism law-
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 scrutinised. 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.
Article 371 of the Constitution lays down special provisions for the states of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Tripura, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh and Goa. While the provisions relating to the mainland states primarily relate to development, employment administration and education, the provisions for the North-Eastern states are far more extensive. These provisions include protecting the “religious and social practices” of the Mizos and the Nagas, and empowering the Legislative Assembly of Nagaland the right to ratify any Act of Parliament regarding “ownership and transfer of land and its resources” before application to Nagaland. These provisions have received a variety of reasoned responses over the years, ranging from lauding this article for empowering the people to criticising it for failing to protect the Naga community as a whole and being undemocratic. Another issue that arises is that conferring these far-reaching special rights on the North Eastern states widens the gap between the rest of the mainstream India and these states and highlights the fact that citizens of the North-East are perceived more as foreigners than as Indians.
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. 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.
Though this distinction 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- are being protected 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 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 she was from a community that was majorly composed of members of the SC/ST communities.
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 law’s 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. Some have 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 unnecessary pressure on the victims to withdraw the case. For instance, in a case where the first response to a Manipuri girl found dead under suspicious circumstances was to register a case of suicide, which was only converted to murder and culpable homicide after much pressure. Indian police have been recognised as 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. Further, there are an extremely disproportionate number of North-Eastern Indians in the police force- for instance, out of 90,000 policemen in Delhi, only 43 are from the North East. 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.
Apart from these domestic provisions that the Indian legislature has passed, India is also a signatory to ICERD (International Convention on the Elimination of all Forms of Racial Discrimination). However, India made the reservation that in case of any appeal to the International Court of Justice for a decision regarding ICERD, the consent of each party in each individual case would be necessary. Thus, any offending party might simply refuse to consent to the application of ICERD to their individual case. Accordingly, in international forums, the provisions of ICERD might not be sufficient to satisfactorily combat racial discrimination in India. Though India follows a dualist system of implementation of law, the judgment in Vishaka v Rajasthan in 1997, held that in the absence of any domestic law, international provisions would be significant. Thus, in Indian Courts, the provisions of ICERD could be applied in unison with other domestic legislation such as the SC/ST Act. However, this application could always be questioned as not inherently part of the Indian legal framework. Consequently, Indian legislation would better serve the purpose of a convincing, decisive anti-racism law.
The huge debate sparked off by the Mary Kom incident cannot be said to be purely legal in nature. The issue is not only one of enforcement or the lack of legislation but also of India’s sociological and societal nature. Indian society seems unable to accept the continuous rise of racism in our country, which further complicates an already complex situation. However, one must not forget the important role law does play in addressing neglected societal problems. For instance, after the Naz Foundation judgment in the High Court of Delhi brought to the forefront the problem of homosexuality- which has been traditionally ignored in society- victims of discrimination on the basis of sexuality felt significantly safer and more socially accepted. Following this example, it is at the very least possible that a change in the legal status of race-based crimes will bring about a shift in the mindset of the people and is almost for certain that it will give them more protection.
A recent article by a renowned political journalist takes the view that the demand for an anti-racism law in India is a political exploitation of transient public outrage. According to him, laws in the Indian Penal Code, 1860 are sufficient to combat racism, and rather than a new law, active implementation of existing laws is necessary. However, the present laws 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 sensitise the Indian populace to the issues of racial discrimination still predominant in India.
One must remember that the problem of racial profiling is more sociological than legal. Integration of people of the people who face the problem of racial profiling into mainstream India can only occur with an absolute change in the outlook of other citizens. The problem manifests itself in the most fundamental of things – even the National Anthem, a symbol of Indian patriotism and collective belongingness- excludes the whole of the eight states that form the Northeast. There is a need for decent primary education about the Northeast as much as the rest of India- only through knowledge can there be true acceptance and integration. Similarly, there can be no elimination of the problem unless non- Hindi speaking South Indians are included as thoroughly into the Indian identity as their North Indian compatriots. Accordingly, while a new and anti-racism law will only assist the situation, it can never completely remove the problem unless there is a complete change in the rather closed mentality of most Indians. Racism is a problem in India, and people must accept it as such.
(Avani Chokshi is an Associate Editor at the Journal of Indian Law and Society)
Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277.