RIGHT AGAINST

RACIAL
DISCRIMINATION

CONTENTS
1. INTRODUCTION
2. INTERNATIONAL ASPECTS
a) International Bill of Human Rights
b) World Conference and Millennium Assembly
c) Specific conventions
d) Declarations
e) Reports and General comment
f) Cases
3. NATIONAL ASPECTS
a) Constitution of India
b) Nido Tania case
4. REGIONAL PRACTISE
5. CONCLUSION

Page | 1

INTRODUCTION
All human beings are born free and equal having dignity and rights. Race is a socially
constructed concept though it is a biological element. State provides equality before the law and
equal protection of the law without any discrimination. Non-discrimination provides the
foundation for the enjoyment of human rights for every individual. This paper has an overview
of the sources of non- discrimination and how far discrimination is prevented by the States and
what is happening in practise. Discrimination is unequal treatment of persons. The etymology of
discrimination is derived from the Latin word discriminates, which means to divide or separate.
State laws prohibit discrimination in educational opportunity, civil rights, and use of facilities
based on race, nationality, creed, color, age, sex or sexual orientation. In Barcelona Traction
case, the International Court of Justice referred to the category of erga omnes1 obligations as
including specifically the basic human rights of the human person, including protection from
slavery and racial discrimination.2 Every individual can get the remedy through courts when
their rights are violated. Rights of the citizens are enshrined in the Constitution of India which
gives the fundamental rights of the citizens that cannot be taken away even by a legislative
amendment.

INTERNATIONAL ASPECTS
Almost in all International declarations, conventions or in treaties it is said that the
principles or rules that are laid down in them should be applied impartially without any
discrimination related to race. The States that have entered into the agreement are entered
without any discrimination. UN charter aims to develop friendly relations among nations based
on respect for the principle of equal rights and self-determination of peoples3 and promote and

In Article 1 of The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of
States (1989), it is said that as expressed by the International Court of Justice, erga omnes is incumbent upon every
State in relation to the international community as a whole, and every State has a legal interest in the protection of
human rights.
2
I.C.J Report, 1970, pp. 3, 32.
3
UN Charter, Article 1(2).

Page | 2

encourage respect for human rights and fundamental freedoms for all without distinction as to
race, sex, language or religion.4

A. THE INTERNATIONAL BILL OF HUMAN RIGHTS

i.

Universal Declaration of Human Rights, 19485

The UDHR is concerned mostly with the equality principle; Equal protection to all before the
eyes of law (Art.7). It says that each of them are entitled to all rights and freedoms said in the
declaration without any discrimination such as to race, colour, sex, language, religion, national or
otherwise.6 Everyone have the right to family and to dissolve it [Art. 16(1)] and can have the
right to equal pay for equal work [Art 23(2)] without any limitation to race.
ii.

International Covenant on Economic, Social and Cultural Rights, 19667

The States Parties guarantee that the rights enunciated in the Covenant will be exercised
without any discrimination as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status[ Art.2(2)]. Special measures of protection
and assistance should be taken on behalf of all children and young persons without any
discrimination and they should be protected from economic and social exploitation [Art.10(3)]
iii.

International Covenant on Civil and Political Rights, 19668

The States to the covenant ensures to all the individuals the rights recognized in the covenant
without any distinction such as race, colour, etc [Art.2(1)]. The rights can only be limited in the
time of public emergency which threatens the life of the nation but if otherwise those rights
should not be limited to anyone on the ground of race, colour, sex, language, religion or social
origin
4

[Art.4(1)].

Any

advocacy

of

national,

racial

or

religious

hatred

that

Ibid, Article 13 (1).

The Universal Declaration of Human Rights, with a Preamble and 30 articles, was adopted by the U.N. General
Assembly on December 10, 1948.
6
UDHR, Art. 2
7
The International Covenant on Economic, Social and Cultural Rights, with a Preamble and 31 articles, was adopted
by the U.N. General Assembly on December 16, 1996, and entered into force on January 3, 1976.
8
The International Covenant on Civil and Political Rights, with a Preamble and 53 articles, was adopted by the U.N.
General Assembly on December 16, 1966, and entered into force on March 23, 1976.
5

Page | 3

constitutes incitement to discrimination, hostility or violence shall be prohibited by law

[Art.20]. Article 24(1) says that Every child has the right of protection as a minor, on the part of
his/her family, society and the State without any discrimination as to race.
B. WORLD CONFERENCE AND MILLENNIUM ASSEMBLY
i)

Vienna Declaration and Programme of Action, 19939

In this conference it is said that the States has the responsibility to develop and encourage
respect for human rights and fundamental freedoms for all without any distinction as to race, sex,
language or religion. It is highly concerned by various forms of discrimination and violence to
which women are exposed all over the world. Elimination of all forms of racism and racial
discrimination, xenophobia and related intolerance is a priority objective for the international
community. Minorities enjoy effectively all human rights and fundamental freedoms without any
discrimination and having equality before the law in accordance with the Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. In all
actions concerning children, disabled persons and vulnerable groups including migrant workers,
non- discrimination and their interest in the society should be given priority. Education should
promote understanding, tolerance, peace and friendly relations between the nations and all racial
or religious groups and encourage the development of human rights in pursuance of these
objectives.
ii)

United Nations Millennium Declaration, 200010

The States resolve to eliminate all forms of violence against women and to implement the
Convention on the Elimination of All Forms of Discrimination against Women for their good
governance.
C. SPECIFIC CONVENTIONS
i)

Indigenous and Tribal Peoples Convention, 198911

Adopted by the World Conference on Human Rights in Vienna on 25 June 1993

General Assembly resolution 55/2 of 8 September 2000

10

Page | 4

Indigenous and tribal peoples enjoy the full measure of human rights and fundamental
freedoms without any restriction. Enjoyment of the general rights of citizenship cannot be
prejudiced by any special measures adopted for safeguarding the persons, institutions, property,
labour, cultures and environment of the peoples concerned [Art.4(3)]. Governments can do
anything possible to prevent any discrimination between workers belonging to the peoples
concerned and other workers [Art.20]. Social security schemes shall be extended progressively
to cover the peoples concerned, and applied without discrimination against them [Art.24].
ii)

Discrimination (Employment and Occupation) Convention, 195112

This convention says that discrimination includes any distinction, exclusion or preference
made on the basis of race, colour, sex, religion, political opinion, national extraction or social
origin, which has the effect of nullifying or impairing equality of opportunity or treatment in
employment or occupation as this convention gives emphasis with regard to occupation and
employment [Art.1(1)]. Article 1(2) says that any distinction as to a particular job based on
inherent requirements is not considered as discrimination. Any measures against an individual
who is justifiably suspected or engaged in prejudicial activities that threatens the security of the
State is not deemed to be discrimination [Art.4].
iii)

International Convention on the Elimination of All Forms of Racial

Discrimination, 196513

All human beings are equal before the law and are entitled to equal protection of the law
against any discrimination and against any incitement to discrimination. This Convention is one
of the first major conventions to elaborate on the contents of one of the non- discrimination
grounds of the UDHR (ie) on racial discrimination. Although it largely repeats the discrimination
provisions of the covenants, its existence as a separate instrument has got the significance in the
international community.

11

Adopted on 27 June 1989 by the General Conference of the International Labour Organization at its seventysixth session
12
Adopted on 29 June 1951 by the General Conference of the International Labour Organization at its thirty-fourth
session
13
Adopted and opened for signature and ratification by General Assembly resolution 2106 A (XX) of 21 December
1965

Page | 5

iv)

Convention against Discrimination in Education, 196014

Every person can have the access to education without any discrimination as to race, caste,
religion, etc. [Art.1]
v)

Convention on the Rights of the Child, 198915

States ensures the rights present in the convention to every child within their jurisdiction
without discrimination of any kind, irrespective of the childs or his or her parents or legal
guardians race, colour, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other status and they ensure that the child is protected
against all forms of discrimination.
D. DECLARATIONS

i)

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious

and Linguistic Minorities, 199216

Persons belonging to minorities have the right to enjoy their own culture, to profess and
practise their own religion, and to use their own language in private and in public freely, without
any form of discrimination [Art.2(1)]. They have the right to establish and maintain peaceful
contacts with other members of their group and with other minorities, as well as with citizens of
other States without any discrimination [Art.2(5)]. They can exercise all their human rights and
fundamental freedoms effectively and have equality before the law [Art.4(1)]
ii)

Declaration on Social Progress and Development, 196917

Social progress and development will be found by ensuring the promotion of human rights
and social justice, which requires the immediate elimination of all forms of inequality,
14

Adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on 14
December 1960, came into force on 22 May 1962
15
Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20
November 1989; came into force on 2 Sep 1990
16
Adopted by General Assembly resolution 47/135 of 18 December 1992
17
Proclaimed by General Assembly resolution 2542 (XXIV) of 11 December 1969

Page | 6

exploitation of peoples and individuals, colonialism and racism; and the recognition and
effective implementation of civil and political rights as well as of economic, social and cultural
rights without any discrimination. The workers have the right to work and can form trade unions
without any discrimination (Art.10) and adoption of appropriate measures can be done. All
human beings have the right to live in dignity and freedom and to enjoy the fruits of social
progress and they should contribute to it on their part.
iii)

Universal Declaration on the Eradication of Hunger and Malnutrition, 197418

The situation of the people afflicted by hunger and malnutrition arises from their historical
circumstances, especially social inequalities, colonial domination, racial discrimination,
apartheid and neo-colonialism.
iv)

Declaration on the Use of Scientific and Technological Progress in the Interests

of Peace and for the Benefit of Mankind, 197519

All States can take the necessary measures, including legislative measures, to ensure that the
utilization of scientific and technological achievements promotes the fullest realization of human
rights and fundamental freedoms without any discrimination whatsoever on grounds of race, sex,
language or religious beliefs.
The principles laid down in Declaration on the Rights of Disabled Persons, Principles for
the protection of persons with mental illness and the improvement of mental health care,
Standard Minimum Rules for the Treatment of Prisoners, Basic Principles for the
Treatment of Prisoners, Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment, United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, United Nations Standard Minimum Rules for Non-custodial
Measures (The Tokyo Rules), United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules), Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, Basic Principles on the Independence of
18

Adopted on 16 November 1974 by the World Food Conference convened under General Assembly resolution
3180 (XXVIII) of 17 December 1973; and endorsed by General Assembly resolution 3348 (XXIX) of 17 December
1974
19
Proclaimed by General Assembly resolution 3384 (XXX) of 10 November 1975

Page | 7

the Judiciary, Basic Principles on the Role of Lawyers, Guidelines on the Role of
Prosecutors, etc should be applied to every individual specified in the respective conventions
without any discrimination as to race, colour, sex, religion, etc.

E. REPORTS AND GENERAL COMMENT

Committee on the Elimination of Racial Discrimination20 (CERD), 1969 concerned that
the Convention has not been fully incorporated in domestic law, as a dedicated and
comprehensive anti-discrimination law. The World Conference recognizes that colonialism has
led to racism, racial discrimination, xenophobia and related intolerance.
The Committee recommends that the State party should strengthen existing legal prohibitions
of discrimination and enact comprehensive administrative, civil and/or criminal antidiscrimination legislation guaranteeing the right to equal treatment and protection against
discrimination, specifically prohibiting discrimination in employment, social security, housing,
healthcare and education on the grounds of race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status, as stipulated in Art. 2(2) of the
Covenant. The State party should take efforts to remove obstacles faced by victims of
discrimination when seeking remedies though the courts.21

F. CASE LAWS
Brown v. Board of education of Topeka22 (1969)
The US Supreme Court held that state laws establishing separate public schools for black
and white students to be unconstitutional. This decision overturned the Plessy v. Ferguson23
(1896), which allowed the segregation in so far as it applied to public education.
20

1969, monitors the implementation of the Convention on the Elimination of All Forms of Racial
Discrimination by its State parties.
21
Concluding Observations of the Committee on Economic, Social and Cultural Rights, INDIA
E/C.12/IND/CO/5May 2008
22

347 U.S. 483 (1954)

Page | 8

Smith vs Allwright24
It is a landmark decision of the United States Supreme Court with regard to voting
rights and racial discrimination. The court ruled that the state had allowed discrimination to be
practiced by delegating its authority to the Democratic Party.
EEOC( Equal Employment Opportunity Commission) v. MBNA-America25
An Asian Indian employee was subjected to ethnic taunts, such as being called "dothead" and "Osama Bin Laden," was physically attacked by a coworker with a learning disability
who believed he was Osama's brother, and was denied training and promotional opportunities
afforded to his White coworkers. In March 2007, MBNA-America agreed to pay $147,000 to
settle for the lawsuit alleging discrimination and harassment based on race and national origin.

NATIONAL ASPECTS
No organization which promotes and incites racial discrimination can legally exist in
India and that the Constitution and the laws in this regard make it clear that the State party will
take all necessary measures within the law to prevent activities and propaganda which promote
and incite racial discrimination.26 Although it is noted that the Supreme Court and the high courts
have the jurisdiction to award compensation to victims of human rights violations, including in
the field of racial discrimination, there exists no specific statute providing for the right of
individuals to seek from the courts just and adequate reparation for any damage suffered as a
result of acts of racial discrimination.27

23

163 U.S.537 (1896)

321 U.S. 649 (1944)
25
E.D. Pa. Mar. 2007.
26
Concluding observations of the Committee on the Elimination of Racial Discrimination, India 1/ 17 September
1996; CERD/C/304/Add.13.
27
Concluding observations 2012 CERD/C/VNM/CO/C10-14
24

Page | 9

Constitution of India, 1950

Everyone has right to equality before the law and equal protection before the law without
any discrimination [Art.14]. Even the State should not discriminate any of its citizen on grounds
only of religion, race, caste, sex, place of birth or any of them and should not be subjected to any
disability, liability, restriction or condition with regard to access to shops, public restaurants,
hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or partly out of State funds or dedicated to the use of
the general public [Art.15]. Nothing in this Article can prevent the state from making any special
provision for women and children and for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. No one can
be racially discriminated for any employment or office under the State [Art 16(2)]. No citizen
shall be denied admission into any educational institution maintained by the State or receiving
aid out of State funds on grounds only of religion, race, caste, language or any of them.28 No
person is ineligible for inclusion in general electoral roll or claim to be included in any special
electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of
them [Art.325].
The National Human Rights Commission of India has accorded the highest priority to
combat discrimination against Scheduled Castes and Scheduled Tribes. There is a Model
National Legislation for the guidance of governments in the enactment of further legislation
against racial discrimination to combat racism and racial discrimination.29 But India still did not
make any legislation particularly with regard to racial discrimination. There must be engagement
of Governments, non-governmental organizations, national institutions, and all concerned
elements of civil society in the process of fighting discrimination.
Nido Tania case30
Nido Tania, the Arunachal Pradesh student who was attacked by a group of shopkeepers
in Lajpat Nagar area of Delhi and that led to his death. The High Court had issued direction after
28

Article 29(2) of Constitution of India,1950

http://www.ohchr.org/Documents/Publications/Discrimination962en.pdf
30
http://www.deccanchronicle.com/140213/news-current-affairs/article/hc-issues-slew-directions-check-hatecrimes-delhi
29

Page | 10

taking suo motu cognizance. The Delhi High Court bench said that the government and the
Centre should consider a legislation for preventing such hate crimes by amendment to the
Protection of Civil Rights Act, 1995 and Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.

REGIONAL PRACTISE
Inter-American Convention against Racism, Racial Discrimination and Related Forms of
Intolerance and Inter-American Convention against All Forms of Discrimination and Intolerance
were adopted by the Organisation of American States on June 5, 2013.31 But India has not
adopted any legislation in particular to combat racial discrimination.

CONCLUSION
In Indian Constitution, in Article 15 expressly prohibits discrimination on either ground,
and that Constitutional guarantee must be rigorously implemented. The legal principles of
equality and non-discrimination are at the core of international human rights treaties and
declarations. However, the progress achieved in the development of international covenants
against discrimination does not mean that this system as a whole is now fully satisfactory. In
some cases, the prohibition is established by conventions, in others by non-binding
declarations. Many more countries have ratified the conventions but have not put in place any
enforcement mechanisms at the national level. Thus call for further development of antidiscriminatory law would seem to be fully justified. It is important for states to implement their
international obligation by adopting legislative and other measures to give effect to the nondiscrimination rights.

31

http://www.minorityrights.org/11959/press-releases/oas-adopts-two-landmark-antidiscriminationconventions.html

Page | 11

BIBLIOGRAPHY
Websites referred:
1. www.ohchr.org/Documents/Publications/Compilation1.1en.pdf
2. www.etymonline.com
3. http://www.idi-iil.org/idiE/resolutionsE/1989_comp_03_en.PDF
Bare Act
1. Constitution of India, 1950
International conventions and declarations:
1. Universal Declaration of Human Rights, 1948
2. International Covenant on Economic, Social and Cultural Rights, 1966
3. International Covenant on Civil and Political Rights, 1966
4. Vienna Declaration and Programme of Action, 1993
5. United Nations Millennium Declaration, 2000
6. Indigenous and Tribal Peoples Convention, 1989
7. Discrimination (Employment and Occupation) Convention, 1951
8. International Convention on the Elimination of All Forms of Racial Discrimination, 1965
9. Convention against Discrimination in Education, 1960
10. Convention on the Rights of the Child, 1989
11. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, 1992
12. Declaration on Social Progress and Development, 1969
13. Universal Declaration on the Eradication of Hunger and Malnutrition, 1974
14. Declaration on the Use of Scientific and Technological Progress in the Interests of Peace
and for the Benefit of Mankind, 1975

Page | 12