This case summary is written by Anmay Agarwal, from Symbiosis Law School, Noida.
Table of Contents
Introduction
The justice was served by Justice L Nageswar Rao[1], Chief Justice of India (CJI), TS Thakur[2] and Justice DY Chandrachud[3] in the case of Karma Dorjee v. Union of India (UOI) and others [4] on 14th December 2016. The petitioner himself representing the case argues about the atrocities and discrimination that the people from North eastern states are facing. He further wants the honourable supreme court of India to suo moto take the cognizance of the matter and direct the then government to take reasonable appropriate steps for the betterment of the people of north eastern states so that they could live intrepidly in all the parts of the country.
Summary of facts
The petitioner wants to put forward the point that the people from north eastern states are being discriminated by people, keeping in mind article 32 (2) of the Indian constitution[5]. He also added that it was ironical to see such type of atrocities, even in twenty first century. His petition is an eye-opener on how people from the north eastern states are deprived of basic amenities and there is no equitable distribution of resources such as state of the art hospitals, job opportunities and transportation and how the people from the rest part of India look down upon them. It is like adding salt to the wound when the petitioner in order to support the plea with factual details the petitioners have adverted to instances which were reported in the various print media since 2009. On 26 October 2009, a woman was burnt to death in the kitchen of her home by a stalker who was unwelcomed. On 17 April 2012, a young student from Manipur is alleged to have died after being assaulted, by a group of armed people, in her college hostel. In Karnataka, the panic was created amongst a particular community after the circulation of threat messages. On 29 May 2013, a young Manipuri girl is alleged to have been murdered in two bedrooms rented apartment in the national capital region. Two young women from north eastern states were subject to racial taunts and molestation and subsequently, a young student in an area near Lajpat Nagar was brutally assaulted.
Prayers by the petitioner
- The union government should constitute a committee headed by an erstwhile supreme court judge to look into the discrimination caused.
- To lay down the procedure and mechanisms in which cases pertaining to discrimination should be dealt with.
- Various schemes and mechanisms should be devised to manifest awareness and promote equality along with a sense of brotherhood with the help of various steps by the government, both at union level as well as state level.
Pleadings by the petitioner
The petitioner at the very beginning of the petition mentions Article 15 from the Indian constitution [6] and begs to draw a parallel picture (as to what government says) to the conditions being faced by the people of north eastern states in the different parts of the country. International convention on the elimination of discrimination was adopted by the united nations in the year 1965. On 4 January 1969, the convention came into force in India. The convention according to article 2, imposes an obligation on the states to take measures and stop all forms of discrimination that the people are facing. India being a signatory to this convention is bound by the convention. Moreover, Article 15 of the Indian constitution makes an attempt to safeguard people from any sort of discrimination.
In order to deal with the concerns dealing with the north eastern people, the Union Government initiated a Committee on 5 February 2014. The Committee was chaired by a man named M P Bezbaruah, a member of the North-eastern Council. After talking to various stake holders, the Committee submitted its report to the Union Ministry of Home Affairs. The Committee categorised its recommendations into the following categories:
- Facilities for legal assistance and providing speedy justice by setting up special courts.
- Strengthening of law enforcement agencies and give them autonomy, charge and power
- Special police initiatives including proactive regional action and special patrolling at the odd hours of the day and special pick up and drop facility to women and girls.
- Utilising the ability of sports and developing national universities that will facilitate and enable them to pursue sports as their career and will be able to get coaching at minimal costs.
- Education of the people about the north eastern states by establishing schools at various levels like district and state levels.
- Greater focus on the northeast on Broadcasting and providing correct and accurate information to the people of north eastern states in minimal time and establishing various government broadcasting centres.
- Appointment of IAS level officers by each state government and provide Accommodation related issues including problems of rent.
Historical aspect – Formation of North Eastern states
Northern eastern states consist of eight neighbouring states that have boundaries touching with China, Bhutan, Bangladesh and Myanmar. There is a land connection between India and Bangladesh so cross border Illegal immigration is a common phenomenon since time immemorial. So, the north eastern states consist of people from various walks of life and different ethnic background from countries like Bhutan, Thailand etc. Even during the British regime, north eastern was an integral and strategic point because of China. The British formed a separate province, that is, Assam province in 1874. The Bengal eastern frontier regulation was passed by the British in the year 1873, a system introduced to save the indigenous groups in the hilly areas of Assam by restricting outsiders. The British divided that region into “restricted area” and “partially restricted area”. British first started isolation of north eastern schools from the rest of the world.
Afterwards in independent India in 1962 when India china conflicts occurred, it became an integral part of because of national security reasons. Anyone who rebelled was declared anti-national and the government used excessive force to suppress the people causing trouble to the people and labelling them as anti-social elements disturbing the peace of the country.
Historical Jurisprudence[8]
This school believes that the laws are made to cater to the ever-changing need of the people. The basic emphasise is that laws are made because of changing habits and customs of the region.
Using this school, a special memorandum of settlement[9] (MoS) was signed between the then prime minister, Rajiv Gandhi and the leaders of the Assam movement. After this MoS, various steps were taken by the government like roads near the borders, quicker development to the area near the border, providing better facilities for the people like hospitals, educational institution and developing various sectors of the state.
The law and the settlement made between the parties were based on the changing demand of the people customs and tradition, this is the perfect example as to how law changes its course according to the need of the people.
The Relevant laws
The petitioner mostly referred to the Constitution of India[10], International Convention on the Elimination of Racial Discrimination (CERD) [11], the Assam accord [12], and the Bengal eastern regulation Act[13].
The Constitution of India
Article 15
In the supreme court’s judgement of Navtej Singh Johar v. Union of India[14], the honourable justice Chandrachud stated that “discrimination on the basis of sex will fall under the ambit of Article 15 of the constitution of India.”
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
It is a United Nations convention. The Convention also includes a private complaints mechanism, effectively making it enforceable against its parties. This has led to the event of a limited jurisprudence on the interpretation and implementation of the Convention. As of April 2019, it has 88 signatories and 182 parties.
Assam accord
The Assam Accord was a Memorandum of Settlement (MoS) signed between leaders of the Assam Movement and representatives of the Government of India. The then Prime Minister Rajiv Gandhi signed it in New Delhi on 15 August 1985. In the year 1986, the Citizenship Act was amended for the first time. The protesters demanded the identification deportation of the illegal Bangladeshi immigrants. These protests ended with the death of several people and with Assam Accord.
The Bengal eastern regulation Act
The [State Government] can by notification restrict all [citizens of India or any class of such citizens], or any persons residing in or passing through such districts from going beyond such line without a pass under the hand and seal of the chief executive officer of such district, or of such other officer as he can authorize to pass grant, and the state government has the power to cancel or restrict from time to time.
Judgement (Ratio and Obiter)
The author of the judgement, Justice DY Chandrachud observed that the discrimination of the people from north eastern state is an issue related to enforcement of the law. The mindset of the people ranging from schools to colleges to universities to jobs and another place need a brainwash. A sense of brotherhood and pluralism should be fostered. People should belong to different ethnic group and embrace the rich culture and traditions that the country has to offer. The problems faced by the people from north eastern states ranging from unemployment, poverty needs to be addressed now. Every person in the world has a right to life with dignity.
He further said that the home minister needs to address the issue right now and has to take appropriate corrective actions.
A two-member committee was appointed by the home minister which constituted of one member nominated by the government of India and one person nominated who is a local public figure.
The nature of the work was also explicitly mentioned by the supreme court stating:
- To monitor the overview of the implementation of the MP Bezbaruah committee.
- To monitor the government initiatives against atrocities.
- To receive an action plan in case of such discrimination.
- To raise the issue to the concerned state authorities.
Critical analysis of the judgement
The above judgement which is authored by Justice DY Chandrachud is a well-written judgement, but it requires some immediate changes. There are a few aspects that the honourable supreme court fails to address that are very crucial:
- Apart from the committee being formed, fast track courts and redressals should be set up for the speedy disposal of the cases pertaining to the discrimination. Also using technology like Artificial Intelligence would aim to give speedy justice in similar related cases.
- Bringing the change in the education system so that there can no discrimination and also educating people about the rights available to them as remedy and punishment if they discriminate.
- The most pivotal part is to lay down the procedure that needs to be followed by the person who faces such discrimination. A proper mechanism should be made so that guidelines are clear and there is uniformity with respect to the procedure followed.
- People should be saved from illegal migrants from the other countries by forming a special Migrants task force that will specifically take care of the illegal migrants from the other countries and deport them back to their own country.
- Allocating special budget and funds to carter the special needs of the north eastern states. More expenditure on education and hospital that will help to create awareness and eventually lead to less discrimination.
Conclusion
The above-mentioned steps along with the steps suggested by the honourable supreme court should be kept in mind and implemented as soon as possible. This will eventually lead to a non-discriminating society and less harassing of the people by racist comments and other ways of discrimination. This will enable people to understand different culture and traditions and also lead to a better condition for people to live and create a sense of unity among the people of India. As India is a perfect example of “unity in diversity”, and pluralism is definitely regarded as the fourth pillar of the Indian democracy.
References
Notes
[1] The Seventh person elevated from the bar, sworn on May 13th, 2016.
[2] Forty-third chief justice of India.
[3] Sitting supreme court justice, former Allahabad high court chief justice.
[4] AIR 2017 SC 113.
[5] The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
[6] The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Nos citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition.
[7] 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.
[8] This school of jurisprudence believes that the laws are made according to the changing need of the people. The law comes into force because of the basic changes and continues evolution and to meet the needs of dynamic nature.
[9] Information taken from the official website of government of Assam.
[10] Supreme law governing written document of India.
[11] Formed to eliminate discrimination, with headquarters in New York, came into force on 9th January, 1969.
[12] Signed between Assam leaders and prime minister Rajiv Gandhi on 15th August, 1985, for peace between Assam and other states.
[13] This bill was passed under the British regime in 1973.
[14] AIR 2018 SCC 1187.
[15] United Nations official website.
[16] The following judgement has been read from the SCC (Supreme Court cases) website.
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