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Monday, December 19, 2016

KARMA DORJEE & ORS Vs. U.O.I & ORS

                                                                  REPORTABLE

                            IN THE SUPREME COURT OF INDIA
                         ORIGINAL CIVIL JURISDICTION


                    WRIT PETITION (CIVIL) No.103 OF 2014




 KARMA DORJEE & ORS                    .....PETITIONERS



                                   Versus



UNION OF INDIA AND ORS                      .....RESPONDENTS



                                    WITH



                     WRIT PETITION (CIVIL) No.111 OF 2014



                               J U D G M E N T



Dr D Y CHANDRACHUD, J

      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 :

The Union Government as well as the States to formulate a mechanism to  deal
with racial atrocities;

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;

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  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 Parties :

“Article 2

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) :

Equal treatment in the administration of justice;

Right to security of person;

Political rights including participation in elections;

Civil rights;

Right to freedom of movement and residence;

Right to freedom of thought, conscience and religion and  to  express  one’s
opinion;

Economic, social and cultural rights;

Right to work and to free choice of employment; and

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[1] :

      “...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[2]]

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 16th 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[3], specifying CERD "as an international covenant  in  its  application
to the protection of human rights in India".

4     In order to deal with the concerns of persons hailing from the  north-
eastern states and residing in different parts of the country,  particularly
in the metropolitan cities, the Union Government constituted a Committee  on
5 February 2014.  The Committee was chaired by Shri M P Bezbaruah, a  member
of the North-eastern Council.  After consulting various stake  holders,  the
Committee submitted its report to the Union Ministry of Home Affairs  on  11
July  2014.   The  Committee  categorised  its  recommendations  into  three
categories :

 immediate measures which need to be implemented within six

                    months to one year;

 short  term measures which need to be implemented within a

 period  of one to one and a half years; and

 long term measures which need to be implemented within a

 period of one and a half to two years.



The Union Government has stated in its counter affidavit  dated  15  October
2015 filed in  these  proceedings  that  the  recommendations  made  by  the
Committee with regard to immediate measures have been  accepted  and  action
has been taken to  implement  the  recommendations  so  as  to  address  the
concerns of citizens from the north-eastern states  residing  in  New  Delhi
and in other parts of the country.   The recommendations  of  the  Bezbaruah
Committee on immediate measures traverse the following areas :

legal  measures, including either a new statutory provision or an  amendment
of existing law;

facilities for  legal  assistance;

strengthening of law enforcement agencies;

special police initiatives including proactive regional action;

utilising the bonding power of sports;

educating the people about the north-east;

greater focus on the north-east in the Information and Broadcasting media;

appointment of nodal officers by each state government ; and

Accommodation related issues including problems of rent.

Implementation of the recommendations has been suggested by  the  report  of
the Committee as follows:

“11.12 Implementation

11.12.1     An effective monitoring  mechanism  therefore  should  be  built
into the system.  We recommend that a high level committee should be set  up
under the Home Ministry with representatives of Ministry of DoNER,  Ministry
of  Home  Affairs,  Resident   Commissioners,  Delhi  Police  and   suitable
representation  from  the  Civil  Society  Organizations  working  for   the
concerns of the North East people.

11.12.2     The Committee should have powers to  ensure  implementation  and
the powers and functions should be clearly laid down.  The powers  given  to
the Committee should also enable it to fix accountability and the  concerned
Ministries  should  act  upon  the  decisions  of  the  Committee  within  a
specified time.  The committee should meet  at  least  once  a  quarter  and
review the implementation of the many initiatives.

11.12.3     The nodal officer from police proposed to be placed in  the  MHA
should be the convener and the member secretary of the committee.

11.12.4     The results of review by the committee  should  be  uploaded  in
the network of North East Police Cell and later on should be  linked  to  be
North East network recommended by us”.



An effective monitoring  mechanism  has  been  suggested  by  the  Bezbaruah
Committee.  This  should  commend  itself  once  the  Union  government  has
accepted the recommendations on immediate measures. The Bezbaruah  Committee
report should not like innumerable instances of its ilk, languish  in  dusty
shelves of long forgotten archives.  The acceptance by the Union  government
is  a  statement  of  what  it  calls  a  “zero  tolerance”  policy  towards
discrimination against Indian citizens hailing  from  the  north-east.   The
court as a protector of human rights  is  within  jurisdiction  in  ensuring
that this assurance translates into reality.

5     The Union Ministry of Home Affairs has stated before  the  Court  both
in its initial counter as well as in an additional  affidavit  filed  on  20
September 2016 that a proposal for amending the Indian  Penal  Code  by  the
insertion of two new provisions - Section 153C and Section 509A -  is  under
examination.  These amendments will deal  with  offences   involving  racial
matters.  Sections 153A, 153B and 505(2) which already exist as  a  part  of
the Indian Penal Code provide as follows :

“153A Promoting enmity between  different  groups  on  ground  of  religion,
race, place of birth, residence, language, etc., and doing acts  prejudicial
to maintenance of harmony.--(1) Whoever-

(a) by  words,  either  spoken  or  written,  or  by  signs  or  by  visible
representations or otherwise, promotes or attempts to  promote,  on  grounds
of religion, race, place of birth, residence, language, caste  or  community
or any other ground whatsoever, disharmony or feelings of enmity, hatred  or
ill-will between different religious, racial, language  or  regional  groups
or castes or communities, or

(b) commits any act which is  prejudicial  to  the  maintenance  of  harmony
between different religious, racial, language or regional groups  or  castes
or communities, and which disturbs  or  is  likely  to  disturb  the  public
tranquillity,

(c) organizes any  exercise,  movement,  drill  or  other  similar  activity
intending that the participants in such activity shall use or be trained  to
use criminal force  or  violence  or  knowing  it  to  be  likely  that  the
participants in such activity will use or be trained to use  criminal  force
or violence, or participates  in  such  activity  intending  to  use  or  be
trained to use criminal force or violence or knowing it to  be  likely  that
the participants in such activity will use or be  trained  to  use  criminal
force or violence, against  any  religious,  racial,  language  or  regional
group or caste or community and such  activity  for  any  reason  whatsoever
causes or is likely to cause fear  or  alarm  or  a  feeling  of  insecurity
amongst members of such religious, racial, language  or  regional  group  or
caste or community, shall be punished with imprisonment which may extend  to
three years, or with fine, or with both.

Offence committed in place of worship, etc.-(2)Whoever  commits  an  offence
specified in sub-section (1) in any place of  worship  or  in  any  assembly
engaged in the performance of religious  worship  or  religious  ceremonies,
shall be punished with imprisonment which  may  extend  to  five  years  and
shall also be liable to fine.]

153B.

Imputations, assertions prejudicial to national integration.

(1) Whoever, by words either spoken or written or by  signs  or  by  visible
representations or otherwise,-

(a) makes or publishes any imputation that any class of persons  cannot,  by
reason of  their  being  members  of  any  religious,  racial,  language  or
regional group or caste or community, bear true faith and allegiance to  the
Constitution of India as by law established or uphold  the  sovereignty  and
integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that  any  class  of
persons by reason of their being members of any religious, racial,  language
or regional group or caste or community be  denied,  or  deprived  of  their
rights as citizens of India, or

      (c)  makes  or  publishes  any  assertion,  counsel,  plea  or  appeal
concerning the obligation of any class of persons, by reason of their  being
members of any religious, racial, language or regional  group  or  caste  or
community, and such assertion, counsel, plea or appeal causes or  is  likely
to cause disharmony or feelings of enmity  or  hatred  or  ill-will  between
such members and other persons, shall be punished  with  imprisonment  which
may extend to three years, or with fine, or with both.

(2) Whoever commits an offence specified in sub-section (1),  in  any  place
of worship or in any  assembly  engaged  in  the  performance  of  religious
worship or religious ceremonies, shall be punished with  imprisonment  which
may extend to five years and shall also be liable to fine.

505. Statements  conducing  public  mischief.  (2)  Statements  creating  or
promoting  enmity,  hatred  or  ill-will  between  classes.--Whoever  makes,
publishes or  circulates  any  statement  or  report  containing  rumour  or
alarming news with intent to create  or  promote,  or  which  is  likely  to
create or promote, on grounds of religion, race, place of birth,  residence,
language, caste or community or any other  ground  whatsoever,  feelings  of
enmity, hatred or ill-will between different religious, racial, language  or
regional  groups  or  castes  or  communities,  shall   be   punished   with
imprisonment which may extend to three years, or with fine, or with both.”



Since the subject falls in the Concurrent List of the  Seventh  Schedule  to
the Constitution wide consultations with the  state  governments  are  being
undertaken before bringing out any amendments to the law.  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.

6     The implementation of the recommendations of the  Bezbaruah  Committee
is being monitored by the Union  Ministry  of  Home  Affairs  and  the  last
review meeting was held on 12 May 2016. The Court has been apprised  of  the
fact that the Union Ministry of Home Affairs has issued  several  advisories
to the state governments.  These advisories include advisories  dated  10/14
May 2012, 3 June 2013, 5 February 2014, 6 February  2014,  12  October  2015
and 23 May 2016.   These  advisories  relate  to  various  aspects  and  are
intended to deal with discrimination and racial profiling  faced  by  Indian
citizens hailing from north-eastern states.   The  advisories,  inter  alia,
deal  with  compulsory  registration  of  First  Information  Reports  under
Section 154 of the Cr.P.C. when  the  information  makes  out  a  cognizable
offence  and  in  regard  to  the  Scheduled  Castes  and  Scheduled  Tribes
(Prevention of Atrocities) Amendment Act, 2015.

7     The Union Government has in its counter affidavit also  indicated  the
steps which have been taken by the Delhi Police  to  inculcate  a  sense  of
security amongst persons from the north-east.   During  the  course  of  the
hearing on 17 October 2016 this Court was of the view that the  Ministry  of
Home Affairs may initially monitor the steps  being  taken  particularly  by
the Delhi Police so that the model can be replicated in other parts  of  the
country.   In pursuance of these observations, a further affidavit has  been
filed on 26 October 2016 on behalf of the Union  Ministry  of  Home  Affairs
stating that an officer of the rank of  Additional  Commissioner  of  Police
hailing from the north-east  has  been  designated  to  be  in-charge  of  a
special police unit from the north-eastern region.   Similarly,  an  officer
of the rank of Joint Commissioner of Police/IGP has been appointed as  nodal
officer for dealing with issues  pertaining  to  the  north-eastern  states.
Separate district Additional Commissioners of  Police  and  DCPs  have  been
appointed as nodal officers to regularly interact  with  citizens  from  the
north-east  residing  in  their  districts.   Steps  have  been  taken   for
sensitising the police  force  and  special  recruitment  drives  have  been
undertaken for  appointment  of  citizens  from  the  north-eastern  states.
Moreover, for Delhi a police officer of the  rank  of  Special  Commissioner
will supervise the functioning of  the  Delhi  Police  as  regards  problems
faced by the people of the north-eastern region.  A special helpline  (1093)
has been introduced on 14 February 2014.  A Facebook page  –  “Delhi  Police
for North-east Folks” was launched on 9 May 2014 and till 15  October  2016,
was visited by over 1.50 crore people.  A  data  bank  on  crimes  has  been
unveiled  in  February  2014.  Representatives  have  been  appointed   from
students and volunteers.   Such  a  mechanism  shall  be  monitored  by  the
Ministry of Home Affairs and based on the  experience  gained,  it  will  be
replicated in other metropolitan cities.

8      The  monitoring  of  instances  of  racial  discrimination  involving
citizens from the north-eastern states involves among  other  things  issues
pertaining  to  law  enforcement.  However,  the  involvement  of  the   law
enforcement machinery is alone not sufficient to resolve the problem.  Mind-
sets have  to  be  changed  including  in  the  universities,  colleges  and
educational institutions, places of work and in  society.   Sensitivity  and
inclusion have to be fostered.  In order to achieve this, greater  awareness
of the history and  the  rich  cultural  traditions  of  the  north-east  is
required to be inculcated.  The problems faced by persons  from  the  north-
east traverse a whole range of issues, from  the  mundane  issues  of  daily
life  to  matters  of  education,  employment,  social  security   and   the
fundamental right to live in dignity.  The Governments, both at  the  centre
and the states have a non-negotiable obligation to take  positive  steps  to
give effect to India's commitment to racial equality.   This  commitment  is
embodied in constitutional rights, fundamental duties, statutory  provisions
and in the international obligations which have been assumed by India.

9     We are of the view that in order to enhance a sense  of  security  and
inclusion, the Union Government in the Ministry of Home Affairs should  take
proactive steps to monitor the redressal  of  issues  pertaining  to  racial
discrimination faced by citizens of the nation drawn  from  the  north-east.
For that purpose, a regular exercise of monitoring and redressal  should  be
carried out by a Committee consisting of the following members :

      1     Joint Secretary (North-east), Ministry of Home Affairs; and

2     Two other members to be nominated by the Union

Government (one   of whom should be a public figure).



The work of the Committee should be widely publicised in the electronic  and
print media, including in the north eastern states.   The  Committee  should
be accessible to grievances, suggestions and complaints.

The Committee should meet periodically and preferably at  monthly  intervals
to  monitor  the  redressal   of   all   such   grievances   including   the
implementation of the recommendations of the  Bezbaruah  Committee,  to  the
extent to which they have  been  accepted  by  the  Union  Government.   The
Committee shall carry out the following functions :

a)    to monitor, oversee, pursue and review the implementation  of  the  MP
Bezbaruah Committee Report dated 11.07.2014;

b)    to monitor the initiatives taken by the Government to  curb  and  deal
with  the  incidents  of  racial   discrimination/racial   atrocities/racial
violence;

c)      to   monitor   action   in   respect   of   incidents   of    racial
discrimination/racial  atrocities/racial  violence,  suggest  measures   and
ensure strict action;

d)    to receive, consider and entertain  complaints  from  individuals  and
groups of individuals  who  claim  to  be  victims  of  racial  abuse/racial
atrocities/racial violence/racial discrimination and  forward  the  same  to
the  National  Human  Rights  Commission  and/or  the  State  Human   Rights
Commissions and/or to the jurisdictional Police Station as the case  may  be
for enquiry and necessary action;

e)    to  issue  necessary  directions  including  calling  for  reports  on
incidents of racial discrimination/racial  atrocities/racial  violence  from
the State Governments/Union Territories.

A decision may also be taken by the Union government on whether any  of  the
other recommendations should be accepted.

10    The writ petitions are accordingly disposed of.

                      .........................................CJI
                                            [T S  THAKUR]



..….........................................J
                                                 [Dr D Y  CHANDRACHUD]


..............................................J
                                                 [L NAGESWARA RAO]


New Delhi
December 14, 2016

-----------------------
[1]   [2] (1997) 6 SCC 241
[3]   [4] (1996) 8 SCC 525 at paragraphs 18 to 21
[5]   [6] SO 2339(e)


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