KARMA DORJEE & ORS Vs. UNION OF INDIA AND ORS
SUPREME COURT OF INDIA
Karma Dorjee And Ors
Union of India And Ors
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(1.) 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 persons from the north-eastern
states. The petitioners speak of the paradox of secular India where on the
one hand, students from the north-eastern states who move to other parts of
the country in search of employment and education, learn in the process the
culture and traditions of the rest of the country while on the other hand, there
is an absence of reciprocating sensitivity towards and awareness of their
concerns. 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.
(2.) The relief which the petitioners seek is a mandamus directing :
I) The Union Government as well as the States to formulate a mechanism to deal with racial atrocities;
II) 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;
III) 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
IV) awareness and to sensitise both the public and the law enforcing machinery.
(3.) 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.
Article 2 of the Convention imposes the following obligation on the States
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division".
Under Article 5 all states parties have undertaken to prohibit and eliminate
racial discrimination in all its forms notably, in the enjoyment of the following
rights (amongst others) :
(i) Equal treatment in the administration of justice;
(ii) Right to security of person;
(iii) Political rights including participation in elections;
(iv) Civil rights;
(v) Right to freedom of movement and residence;
(vi) Right to freedom of thought, conscience and religion and to express one's opinion;
(vii) Economic, social and cultural rights;
(viii) Right to work and to free choice of employment; and
(ix) Right of housing, public health, medical care, social security, education and training and access to any public place.
India being a signatory to the Convention is duty bound to enforce its
obligations under the law. The provisions of the Convention are of
significance while construing the nature and ambit of the constitutional
guarantee contained in Article 15 of the Constitution. India's obligations under
an international convention designed to protect fundamental human rights
must be read into the constitutional guarantee against racial discrimination. A
consensus in the international community of nations, in which India is a vibrant
participant, must infuse the content of our own constitutional guarantees.
As this Court held in Vishaka v. State of Rajasthan (1997) 6 SCC 241 :
"...The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law". [id at page 251] [See also C Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil (1996) 8 SCC 525 at paragraphs 18 to 21]
The provisions of domestic legislation in India in fact buttress and support the
obligations which have been assumed by the country under CERD. The
Protection of Human Rights Act, 1993 defines the expression "International
Covenants" thus :
"1[(f) "International Covenants" means the International covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16 th December, 1966 and such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify;]"
The Union Government has issued a standing order dated 21 September 2010 SO 2339(e) , specifying CERD "as an international covenant in its application to the protection of human rights in India". ;
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