STATE OF EXCEPTION: INDIA MUST NOT NORMALISE A CULTURE OF DISCRIMINATION

After Reading This Article You Can Solve This UPSC Mains Model Question:

Despite a robust constitutional framework guaranteeing equality and non-discrimination, marginalised communities in India continue to face institutional and social discrimination. Examine the reasons for this gap and suggest measures to ensure substantive equality.15 Marks (GS 2, Social justice)

Context

In its first review of India since 2007, the U.N. CERD expressed “grave concern” over reports of discrimination and violence against Dalits, Adivasis, minorities, refugees and other marginalised groups, raising

Introduction

India is constitutionally committed to equality, dignity and fraternity, yet marginalised groups often face a gap between rights guaranteed in law and equality experienced in practice.
A “state of exception” emerges when certain groups face selective enforcement, weaker legal protection and unequal treatment. Thus, the real challenge is not merely discrimination, but its institutional normalisation.

Background: India and the CERD Framework

A. International Commitment

India ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1968, committing itself to eliminate racial discrimination.
CERD monitors compliance by reviewing State reports and assessing measures taken to prevent and address discrimination.

B. India’s Position on Caste

India argues that caste does not fall under Article 1 of ICERD because caste is not synonymous with race.
However, CERD adopts a broader interpretation that covers discrimination based on descent or inherited status.

C. Why This Matters

The debate highlights the gap between the legal classification of discrimination and the actual experience of exclusion based on birth.
The larger challenge is whether human dignity should depend on technical definitions or protection against all entrenched forms of discrimination.

Major Concerns Raised by CERD

A. Violence and Discriminatory Treatment by Law Enforcement

• CERD raised concerns over reports of violence, excessive force and discriminatory treatment of minorities, Dalits and non-citizens.
• Such actions undermine the rule of law, due process and equality, giving discrimination an institutional character.

B. Manual Scavenging and Hazardous Sewer Cleaning

• Despite legal prohibition, hazardous sewer and septic tank cleaning continues to cause deaths and injuries.
• It reflects the intersection of caste hierarchy, occupational segregation, unsafe work and weak enforcement.

C. Hate Speech and Targeted Social Hostility

• Hate speech can legitimise prejudice, deepen social polarisation and create conditions conducive to discrimination and violence.
• CERD also highlighted the absence of an explicit and comprehensive provision addressing racist hate speech under the BNS.

D. Refugees and Non-Refoulement

• CERD raised concerns over the treatment and return of Rohingya Muslims, invoking the principle of non-refoulement.
• The principle prohibits returning persons to places where they face persecution, even though India is not party to the 1951 Refugee Convention.

E. Citizenship, Documentation and Disenfranchisement

• CERD expressed concerns regarding alleged mass deprivation of citizenship through the NRC and large-scale electoral roll deletions.
• Such processes require transparency, due process and accessible remedies to prevent arbitrary exclusion.

Constitutional Framework Against Discrimination

1. Equality and Non-Discrimination — Articles 14, 15 & 16
Guarantee equality before law, prohibit discrimination and ensure equal opportunity in public employment, while enabling affirmative action for disadvantaged groups.

2. Abolition of Social Exclusion — Article 17
Abolishes untouchability and attacks caste-based discrimination at its constitutional roots.

3. Protection of Life and Dignity — Article 21
Safeguards life, personal liberty and human dignity, forming the basis for substantive equality.

4. Protection of Identity and Culture — Articles 25 & 29
Protect freedom of religion, conscience, language, script and culture, thereby safeguarding minority identities and diversity.

5. Social Justice and Fraternity — Article 46 & Preamble
Direct the State to uplift weaker sections and uphold Justice, Liberty, Equality and Fraternity as the foundation of an inclusive society.

Why Discrimination Persists Despite Constitutional Guarantees

1. Deep-Rooted Social Hierarchies
Caste, community and ethnic prejudices are deeply embedded in society and often predate the modern State.
Law can prohibit discrimination faster than society can eliminate prejudice.

2. Weak Implementation and Deterrence
Poor enforcement, weak investigation, low conviction rates and delayed justice reduce the effectiveness of anti-discrimination laws.
When violations go unpunished, impunity lowers the cost of discrimination and normalises it.

3. Institutional Bias
Historical social prejudices may influence the functioning of institutions despite their formal neutrality.
Therefore, formal equality does not automatically translate into substantive equality.

4. Information and Data Deficit
Marginalised groups often lack legal awareness, resources, documentation and access to effective legal remedies.
Further, inadequate disaggregated data makes vulnerable communities invisible in policy formulation.

5. Identity-Based Political Polarisation
Political competition may amplify social and identity divisions, converting prejudice into electoral incentives.
This weakens the constitutional principle of fraternity and equal citizenship beyond group identity.

WAY FORWARD: FROM FORMAL EQUALITY TO SUBSTANTIVE EQUALITY

1. Restore Institutional Independence — Ensure autonomous, transparent and plural human-rights institutions with independent investigations and executive accountability.
2. Comprehensive Anti-Discrimination Framework — Enact an overarching law covering discrimination based on caste, religion, ethnicity, gender, disability and other structural disadvantages.
3. Strengthen Hate-Speech Laws — Clearly distinguish legitimate free speech from incitement to discrimination, hostility or violence, with effective investigation and prosecution.
4. Eliminate Hazardous Manual Cleaning — Ensure complete mechanisation, strict liability, compensation and rehabilitation to eliminate caste-linked hazardous sanitation work.
5. Ensure Timely Disaggregated Data — Conduct the Census and regularly publish reliable, disaggregated data to identify inequalities and enable evidence-based policymaking.
6. Transparent Citizenship & Electoral Processes — Ensure notice, reasoned decisions, accessible appeals and independent oversight to prevent arbitrary exclusion.
7. Accountability for Exceptional Laws — Subject security and regulatory laws to proportionality, judicial safeguards, legislative oversight and periodic review.
8. Protect Civil Society — Enable civil society to document violations, provide legal assistance and strengthen democratic accountability without undue regulatory restrictions.
9. Promote Constitutional Fraternity — Build constitutional literacy, institutional sensitisation and anti-prejudice education to transform equality from a constitutional promise into a social habit.

Conclusion

India’s challenge is not the absence of constitutional safeguards but their unequal implementation. Strengthening institutions, accountability and social fraternity can transform formal equality into lived equality, fulfilling Ambedkar’s vision of Liberty, Equality and Fraternity as a way of life.

Important Current to Concept (CTC) from this Article for UPSC 1951 Refugee Convention.Article 46