Racial Discrimination is a violation of fundamental rights?
This article is written by Dipanwita Chatterjee, Currently pursuing BA-LLB in the 6th Semester at KIIT School of Law. The topic covers an overview of racial discrimination in context with fundamental rights.
Discrimination and Racism
Discrimination is perhaps the most discussed and warmed subject from days of yore. Be it the field of sports, work environment, or some other establishment of the general public, discrimination is profoundly imbued in practically every one of these regions. This issue can be named grave in a nation like India, where discrimination is yet to leave the construction of the general public.
Discrimination is the demonstration of making outlandish qualifications between people dependent on the gatherings, classes, or different classifications to which they are seen to have a place. It occurs when a person is not able to enjoy their human rights or other legal rights on an equal basis with others because of unjustified discrimination made in policy, law, or treatment.[1] This is the unfair or prejudicial, injurious treatment of different people and groups based on features such as race, gender, age, or sexual orientation.
Also Read: Vishaka and Ors. Vs. State of Rajasthan and Ors.
Individuals may be discriminated against on the base foundation of race, gender, age, religion, or sexual orientation, as well as other categories.[2] Distinction predominantly occurs when people or society are unreasonably treated in a manner that is more regrettable than others are dealt with, based on their real participation in specific social classes. It includes confining individuals from one society from promising circumstances or advantages that are accessible to individuals from another group. [3]
Discrimination dependent on race frequents pretty much every part of the general public, be it training, the entertainment world, familial designs, or business openings. This has gotten progressively inadvertent and backhanded.
Racial and ethnic discrimination[4] differentiates and distinguishes people on the basis of real and racial and ethnic changes and leads to many forms of the ethnic penalty.[5]Racial discrimination[6] is any discrimination which is opposite to any individual on the ground of their skin colour, or racial or ethnic origin.[7]
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What is Racism?
Racism, also called racialism, the belief or the acceptance that humans may be divided into separate and exclusive biological entities known as “races”; that there is a link between inherited physical traits and traits of personality, intellect, morality, and other cultural and behavioral features; and that some races are innately superior and grander to others. The term is additionally applied to political, financial, or legitimate foundations and frameworks that participate in or propagate separation based on race or in any case strengthen racial disparities in riches and pay, instruction, medical care, social liberties, and different regions.
Such institutional, underlying, or foundational prejudice turned into a specific focal point of academic examination during the 1980s with the rise of the basic race hypothesis, a branch of the basic lawful investigations development. Meanwhile, in the late 20th century the notion and belief of biological race have been recognized as a cultural invention, entirely without a scientific basis.
This manifestation or demonstration of discrimination was elucidated in the case of Griggs v. Duke Power Co[8], which was a U.S. Supreme Court case. In this case, a company was accused of racially discriminating against the African- American population, through a policy which was ostensibly neutral.
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Anti-discrimination Bill and Equality Bill, 2016.
By and by, there is no far-reaching anti-discrimination enactment in India. Some dissipated laws ensure the citizens, however, those are just accessible against the state and not private associations or people.
To overcome this issue, MP Shashi Tharoor had moved a bill in the parliament, named Anti-Discrimination Bill and Equality Bill, 2016. This bill gives a wide ambit to the idea of segregation, stretching out its application to the private area too. Subsequently ensuring the ones, who were prior left vulnerable.
This bill covers all different types of people, like all consumers, service providers, shopkeepers etc. The formal sector, informal sector, organised sector or the unorganized sector everything is included.
This bill gives compensation to the discriminated people, this is a type of initiative. The damages are to be ascertained in a unique and different manner. This amount is to be half of an MP’s salary or one lakh rupees, whichever is more. Another provision is formed for aggravated discrimination. This would be equal to fifteen lakh rupees, or the annual salary of the president of India, whichever is higher.[9]
One area that this bill covers, which is of specific importance, is that of Khap panchayats and other such entities, evoking violence based on communal lines. This bill seeks to take over Khap panchayats by dismantling every kind of segregation and discrimination based on that.
This was the enumeration of some vital provisions of this brilliant bill. If this bill is not passed as a law, it can, without doubt, be termed as a humongous loss for both the society of India.
Also read: Punjab: In A Phase of Burgeon or Banjax?
Racial Discrimination is a violation of Fundamental Rights
Article 15 of the Indian constitution truly is the guardian of the downtrodden and a shield against discrimination[10], it has aided the Indian society to stand tall, proud, and gratified despite such a massive diversity and all kinds of sexism, racism, and rigid caste system and will endure contributing to India’s unity and equality, forever.
Article 15 restricts discrimination on the ground of:
- Religion – It means that no person should be discriminated against based on religion from accessing any public place or policy by the state or any group.
- Race – Ethnic origin should not form a basis of discrimination. For example, a citizen of Afghan origin should not be discriminated against by those of an Indian origin.
- Caste – Discrimination based on caste is also prohibited to prevent atrocities on the lower castes by the upper caste.
- Sex – The gender of an individual shall not be a valid ground for discrimination in any matter. For example, discriminating transgenders, females, etc.
- Place of birth – A place where an individual is born should not become a reason for discriminating among other members of the country.
Article 15, Article 16, and Article 29 of the Constitution of India prohibit discrimination on grounds of “race”. Section 153A of the Indian Penal Code (IPC) also refers to “race”. India ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1968 and vide the Gazette of India notification No. S.O. 2339(E) dated 21 September 2010, the Ministry of Home Affairs made ICERD applicable at a domestic level under the Protection of Human Rights Act (PHRA) of 1993.[11]
Conclusion
Racial discrimination in employment, housing, credit markets, and consumer interactions, but many of the arguments reviewed here may also extend to other domains like education, health care, the criminal justice system, and to other types of discrimination like gender, age, sexual orientation. Racial discrimination is trauma itself, one that hurts deeply. Racism has long been a part of human history. At its extremes, this has included genocide, slavery, and the colonization of indigenous people. While we readily recognize and widely condemn overt acts of racially motivated hate today, racism continues to permeate our society.[12]
[1] “What drives discrimination and how do we stop it?”, (Last Accessed on 16th February 2021) https://www.amnesty.org/en/what-we-do/discrimination/
[2] “Discrimination: What it is, and how to cope”, American Psychological Association, (Last Accessed on 16th February 2021) https://www.apa.org/topics/racism-bias-discrimination/types-stress
[3] Cambridge Dictionaries Online. Cambridge University, (Last Accessed on 16th February 2021) https://dictionary.cambridge.org/dictionary/english/discrimination
[4] Kislev, Elyakim, Deciphering the ‘Ethnic Penalty’ of Immigrants in Western Europe: A Cross-Classified Multilevel Analysis, (Last Accessed on 17th March 2021) https://link.springer.com/article/10.1007/s11205-016-1451-x
[5] Carmichael, F.; Woods, R. (2000). “Ethnic Penalties in Unemployment and Occupational Attainment: Evidence for Britain”. (Last Accessed on 17th February 2021) https://www.tandfonline.com/doi/abs/10.1080/026921700101498
[6] “International Convention on the Elimination of All Forms of Racial Discrimination”. United Nations Human Rights, Office of the High Commissioner. United Nations.
[7] Dr. Deen Dayal, Complexion Based Discriminations: Global Insights, (Last Accessed on 16th February 2021),https://books.google.co.in/books?id=dxlgDwAAQBAJ&pg=PT249&redir_esc=y#v=onepage&q&f=false
[8] Griggs v. Duke Power Co. – 401 U.S. 424, 91 S. Ct. 849 (1971)
[9] Rachit Garg, The need for an Anti-discrimination Law, Last Visited on 21st February 2021 at 12.45 pm https://blog.ipleaders.in/need-anti-discrimination-law/
[10] Subodh Asthana, Article 15 of the Constitution: Prohibition of Discrimination & Unreasonable Differentiation, https://blog.ipleaders.in/article-15/
[11] Suhas Chakma, Racism in India: The need for the criminalization of racism and racial crimes, http://www.uncat.org/press-release/racism-in-india-the-need-for-criminalisation-of-racism-and-racial-crimes/
[12] Maria Veronica Svetaz, The Traumatic Impact of Racism and Discrimination on Young People and How to Talk About It, https://www.google.com/search?client=firefox-b d&q=The+Traumatic+Impact+ofRacism+and+Discrimination+onYoung+People+and+How+to+TalkAbout+It.