This article has been written by Samiksha Singh, a student of National University of Study and Research in Law, Ranchi.

 

The only stable state is the one in which all men are equal before the law.

-Aristotle

Introduction

From religion to castes, from dressing style to cuisines, from language to art India has been heralded as one of the most complex amalgamation of versatile cultural identities. The country has faced a major setback because of high rates of violence due to its diverse culture. The incidents of racial violence, hate crime, mob lynching, discrimination is on upsurge which is the outcome of identity stemming from race, religion, caste and gender amongst others. Not only the citizen, but also those who have been given the duty to impart law and order play a complicit role in promotion of racial violence and cover-up of hate crimes. 

The custodian of law, our police, who have been assigned the duty to uphold and enforce the law impartially and protect life, liberty, property, human rights, and dignity of the members of the public fails to discharge their duties and differentiate individuals on the basis of their religion and ethnicity. The act of branding someone as criminal, law-breaker or terrorist mainly because of their ethnicity, race or skin color is a yearlong practice followed across the world. The subjugation of blacks, differential treatment of Muslim minorities at airport check posts, denying of visa to some ethnic groups, suspecting few ethnic groups or nationals etc. is very common in various countries across the globe. Such branding of citizens based on their ethnicity or race prevails even in India.

The process of looking at certain characteristic as the reason of criminal behavior by the police is defined as profiling. Racial Profiling comes into picture where police arrests, investigates or question some group or individual on mere suspicion due to their ethnicity or race. Such mistrust, resentment and suspicion between the minority ethnic or racial groups and police leads to over-penalisation and criminalization of racialized subjects.

The duty of the police is to maintain law and order and this makes them one of the important stake holders in criminal justice system. By following incisive policing techniques and by discriminating people on the basis of race and ethnicity they defeat the criminal justice system. If the act of the agents of law is racist overtone then it defeats the fundamental rights guaranteed in the constitution. Such profiling by police gives a wrong message in the society and even people of the other community starts such discrimination and take law in their hand. This leads to incidents of hate crimes, racial violence, mob-lynching where the majority meddles with the law and goes to the extent of killing the minority involved in any unlawful act merely on the basis of suspicion. There are instances which suggest that police turns deaf ear to such incidence.

This article will highlight that those who are more prone to biasness, the factors which leads to such profiling and police bias, the effect of racial profiling and how it violates the Constitutional Provision as well as Human Rights Law. At the end the author has given the recommendation and suggestion that would help in minimizing and eradicating such wrong practice.

Root cause for Racial Profiling

Racial profiling is the result of unconscious beliefs, biases and prejudices of one group of society for the other groups. Those who are in majority in a given place at some particular time exercise their dominion of power over those less in number. The disproportionate surveillance and fining practices against minority group is frequently due to social and demographic factor which includes age, employment and leisure activity. Moreover due to absence of any law against anti-racism, the one committing it has no fear of any sanction. Also, there are various other factors which lead to formation of biased opinion against the vulnerable group by police officials.

Reasons for Police Bias

The Indian police trace its origin back to 1843 but are struggling to come to terms with India’s class, caste, gender, and religious diversities. As a result of this, the vulnerable group becomes subject of Racial Profiling. The reasons for this may be due to a lack of proper training, adequate sensitization, and/or inherent personnel biases, according to the Status of Policing in India Report 2018.

The major reasons for such bias includes:

• Lack of representation from minority community

Equity, diversity, and inclusion of members from different ethnic groups are important for effectiveness of law enforcement organizations. Police forces in countries like Australia and United States have enacted measures like Diversity and Inclusion Strategy 2016–2026 and the United States Capitol Police’s Office of Inclusion, Diversity, Equity and Action (IDEA) respectively to embrace diversity in organisational structures, in decision-making processes and in the way they work and communicate. In India scheduled castes, scheduled tribes and other backward classes defined as specific ethnic groups in the Constitution of India comprise 66.2% of the total population, but representation of these groups in the police force stands at 36.21%. As these group don’t get enough representation in law enforcement organizations, their rights are often overlooked at. Moreover, they also become the subject to oppression, violence and profiling at the hands of police.

• Lack of training and sensitization

The Supreme Court in TehseenPoonawalav. Union of India gave certain guidelines to the police and the Central Government. These guidelines also included official sensitization. But the reality is that the police official in India doesn’t receive proper training pertaining to human rights issues, caste sensitization and crime control mechanisms. The report highlights that over the last five years only 6.4 percent of the police force have been provided in-service training. Senior police may at times get in-service training but those at constabulary-level personnel are not provided with any such training. 

• Paucity of Technology

At times police turns deaf ear to the incidents of mob-lynching or racial discrimination which is committed by the majority on vulnerable group because they don’t have access to technological devices. So they fail to inform the incident to the police station and they don’t get man power to control the acts of agitation. The report formulated over 22 states highlights 70 police stations do not have access to wireless devices, 224 police stations do not have access to telephones, and 24 police stations have access to neither wireless nor telephones.Out of those 22 states, 240 police stations have no access to vehicles.

• Pressure from Political Parties

The hindrance caused by the political parties in the investigation makes the police only a silent spectator of crime commission. Although in some incidents of oppression of religious and ethnic minorities group police are not directly involved but their non-interference makes them the reason behind violent racial profiling by people who take law in their hand. The report also puts forth that twenty-eight percent police personnel believe that pressure from politicians is the biggest hindrance in crime investigation. Seventy two percent police personnel have experienced political pressure during investigation of cases involving influential persons. In Prakash Singh v. Union of India it was asserted that those having clout can get away from the clutches of the justice system even with blatant violation of law which results in direct violations of the rights of citizens belonging to miniority ethnic groups and those who are economically inferior in the form of unauthorised detentions, torture, harassment, fabrication of evidence, malicious prosecutions, etc.

The Impact of Racial Profiling

There exists paucity of data on the consequence of racial profiling. But several studies put forth that it may have negative effects on the attitudes and well-being of the people and communities it targets.

• Creation of Mistrust in the Institution– The citizens of any democratic nation rely on its institutions and systems such as the criminal justice system, law enforcement and the education system and this trust is a foundation of democracy, order and a harmonious society. All of these institutions require citizens to work positively and cooperatively with them to maximize their success in fulfilling their mandate. But if a group of individual is subjected to treatment as a criminal merely on the basis of suspicion then that creates mistrust in their mind against the institutions and the criminal justice system, because police are the most visible force in the legal system.This also defeats their trust in the government and makes them think that government works for some people and not all people. Such mistrust is created not only due personal experience of racial profiling but also due to widespread perception that such profiling exists. The nonchalant behavior of the government to address this issue and eradicate it adds fuel to the fire.
• Alienation– When a minority group is subjected to racial profiling then the sense of belongingness they have for their country fades away. Due to humiliation and inhumane treatment they forgo their sense of citizenship. Once rejected by the mainstream society they either migrate or subside to the problem.
• Blockage of opportunities– The false categorization of any group or individual as suspect blocks the opportunities for them. A stigma gets attached to them in spite of their innocence. This makes it difficult for them to return to the main stream of the society and sustain their livelihood.
• Physical effect on Victims– Racial Profiling not only affects the victim mentally but it effects them physically too. The upsurge in mob-lynching is the effect of such racial profiling. Mob lynching involves a group of violent people attacking and lynching a person or a group of persons, amounting to hate crime, on the lines of religious sentiments. The mass takes law in their hand because police don’t take actions against them. Moreover, police themselves are involved in racial profiling and harassing the minorities. So this sets a wrong example in the society. Thus, the racial and ethnic minorities are subjected to physical violence not only at the hands of police but also at the hands of society.

Subjects of Racial Profiling in India

Stop and Search has been the most contentious aspect of the relationship between the police and minority, ethnic community. Police uses their power extensively and arbitrarily against few group. The groups in India that mostly becomes the target are:

• Dalits

Cast-violence and subjugation of minorities is not something new in India. An incident of came into picture in 2000 whereby police turned their backs and left a Dalit untouchable village in India’s Bihar state as an upper caste mob entered it and slaughtered thirty-four lower-caste men, women and children.Although, police were not the one committing violence but with due diligence and intervention they could have avoided it.

• Muslim

A report which was formulated by interviewing the police personnel highlights that half of the police have significant bias against the Muslims. Many Indian Muslims languish in Indian Jails due to unfair targeting and fake terror charges. The police alone are not responsible for making such arrests and sending Muslims behind bars. Their action is also backed those sitting above police personnel i.e. the government. Moreover, at times the government even exerts pressure on police to effectuate such arrests and detention.

• Christian

An upsurge in incidents of mob-lynching is the result of such discrimination which brings suspicion against the minorities Muslim or Christian which ultimately leads to hate crime. Although police are not involved in this but if they encounter this they turn deaf ear. This can be said by referring into the matter of mob-lynching of a Christian in Jharkhand. A police investigation has shown that the death might have been as much a result of police complicity as it was of the violent mob. The investigation revealed how victims were ignored by the police for over an hour and a half, as they lay on the street, writhing in pain, after having been attacked for over four hours.

• Migrants

At times crossing their own state boundary in search of better life and seek livelihood makes the citizen fall in the trap of racial profiling. They found themselves cast as threat to security, and their faith and hope had been made with hostility, prejudice and even violence.Migrants become the target of hatred. The case of the beating and death of a university student from the northeast and the insouciant approach of police in investigation made the news a national issue.

Violation of Human Rights Law and Constitutional Provisions

Racial Profiling violates Human Rights Law and is against the constitutional Provision of India. Such policies adopted by police violate rights to equality enshrined in the Constitution. This method is highly discriminatory and targets minority. Moreover, Article 2 of Universal Declaration of Human Rights Prohibit any discrimination on the basis of race, religion, sex, language, national or social origin, birth-pace etc. The same protection has been accorded in Article 2 of the International Covenant on Civil and Political Rights, Articles 1, 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination and article 2 of the Convention on the Rights of the Child. Racial Profiling defeats these laws and it is egregious form of discrimination. 

All people are equal before law and every person must be given justice by treating them as equal. There should not be any discrimination based on any grounds. The same principle is entailed in Article 7 of the Universal Declaration of Human Rights and Article 26 of the International Covenant on Civil and Political Rights. Racial Profiling violates such rules and the custodian of laws i.e. the police violates it. The officers at times treat the innocent group of people as criminal based on mere suspicion solely on the basis of their race or ethnic group.

The Right to Privacy is protected under Article 14, 19 and 21 of the Constitution. This right is often violated due to arbitrary exercise of power by police in effectuating search and detentions of suspects. As pointed out in Maneka Gandhi v. Union of India the right to life embodied in Article 21 of the Indian Constitution, is not merely a physical right but it also includes within its ambit, the right to live with human dignity. Those who suffer from such practice see this practice as humiliating, embarrassing and even traumatizing. Racial profiling has adverse effect on various other rights such as rights to life, liberty and security; to freedom of movement; protection against arbitrary arrest and other interventions; to effective remedy; to protection of the best interests of the child.

The Constitution or any other law in force in India does not specifically mentions about racial profiling. Nevertheless by plain reading of constitutional provisions it can be construed that such practice is barred by the Constitution. Also, international human rights treaties though do not directly refer to racial or ethnic profiling; several international human rights mechanisms have discussed racial profiling as a violation of international human rights law. For instance, Human Rights Council held debate on racial profiling and incitement to hatred, including in the context of migration. Such measures show that there is no place for racial profiling even in International Regime.

Suggestions

Roscoe Pound, an eminent American jurist postulated that when conflict arises in the society then law becomes the tool of social engineering which balances the competing interests in the society. He also postulated that in a civilized society men must be assured that other members of the society won’t commit any harmful aggression upon them. Although the Constitution of India entails various provisions to safeguard the citizens from any act of aggression and construes that racial profiling is against the rule of law. But the menace still continues. To curb the same, the government must bring an anti-racism law and a law against racial profiling by police. States must not shrug off their responsibility to protect victims of racism and racial discrimination, including migrants. 

S.166 of Indian Penal Code, 1860 entails penalty to public servant who knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person. The police organization must be sensitized about existing laws, their duties and role is to aim towards rebuilding trust in the communities. Police must check proper compliance of the existing provisions which safeguards rights of all the citizens. Moreover, the citizens from minority ethnic and religious groups who often become the subjects of racial discrimination must be given representation in the police services. This would help them to raise their grievances and check that members of their communities are not subjugated.

Media is considered to be the fourth pillar of democracy. So media should not telecast fake news and hate speech which contributes to hatred and create havoc in the society. The problem could be dealt with through encouraging media literacy, and through encouraging the development of a code of conduct. Human rights, including the right to development, were endangered by the rise in racial discrimination.

It is the need of hour to bring the progressive agents of change in the police force and progressive agents of change in the community on one platform to develop a common understanding of the problem people face in the society and suggest the solution of those problems. A community monitoring group can be established who would scrutinize the acts of police. Such groups have been established in countries like UK and Brazil. 

Lastly, if we want to strengthen our democracy we should question ourselves about our bias and preconceptions and understand by putting us in other people’s shoes how they experience life in our society. It must be seen that law operates equally for all the citizens. This would create a trust in the institution and the government. 

Conclusion

Although legal status of minority ethnic or religious group has burgeoned and legion laws have been enacted for safeguarding their rights but the incidents of racial profiling grind the dignity of the minorities into dirt. Such profiling is illegal and it has negative effect on the minds of vulnerable subject. This creates mistrust in the institution coupled with feeling of alienation. Not only this, such act also meddles with the mental, emotional and physical well-being of people. When police resort to racial profiling then the majority group also engage themselves in hate crime against minorities because then they have no fear of law. Racial profiling also hampers national security and undermines human dignity. Moreover, such practice meddles with the Human Rights regime. People subjected to it are denied their dignity, privacy and equal protection of law. The arbitrary exercise of power coupled of malpractices leads to discrimination on the basis of race, caste, sex, creed or color. All such violation defeats the Constitutional Provision as well as Human Rights Principle. 

Religiously motivated hate crimes have spiked in the recent years. The different religious and ethnic communities are pitted against each other in the name of religion. In such circumstance, racial profiling by police exacerbates a climate of fear for the victims and those associated to them. Police have the duty for discharging law and order and seeing that the provisions of law are adhered to. Police must discharge their duty impartially and they must not discriminate the individuals based on their race and ethnicity. They should not act under the pressure of political parties; they must not perform such acts which defeats the trust of people in this institution. Police must be committed to observance of law. They must understand that commitment to rule of law is their obligation and not merely a formality.