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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

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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

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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 IV)  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

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

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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;

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(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 Rajasthan1 :

“...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 Thirukoil2]

The provisions of domestic legislation in India in fact buttress and support the

obligations which have been assumed by the country under  CERD.  The 1 (1997) 6 SCC 241 2 (1996) 8 SCC 525 at paragraphs 18 to 21

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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

20103, 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 :

(a)  immediate measures which need to be implemented within six

                   months to one year;

(b)  short  term measures which need to be implemented within a  period  of one to one and a half years; and

3 SO 2339(e)

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(c)  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 :  

(i). legal   measures,  including either  a new statutory provision or  an

amendment of existing law; (ii). facilities for  legal  assistance; (iii). strengthening of law enforcement agencies; (iv). special police initiatives including proactive regional action; (v). utilising the bonding power of sports; (vi). educating the people about the north-east; (vii). greater focus on the north-east in the Information and Broadcasting

media; (viii). appointment of nodal officers by each state government ; and (ix). 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.

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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.

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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.

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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.

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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

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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

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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.

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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;

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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