INTRODUCTION
The Indian Constitution is celebrated for its commitment to pluralism, yet they lived reality of many citizens particularly those from the North-Eastern states, the Ladakhi community, and the African diaspora reveals a significant fracture in the protective wall of the law. While Article 15 prohibits discrimination on the grounds of race, this constitutional guarantee is a vertical right against the State. In horizontal relationships (citizen vs. citizen), the absence of a specific penal statute creates a Justice Gap.
This research investigates why, despite being a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), India lacks a domestic Anti- Racism Act. It argues that the current race-blind approach of the Bhartiya Nyaya Sanhita (BNS) fails to provide the restorative and deterrent justice required to protect the dignity of racially distinct individuals.
Unlike many Western democracies that have enacted specific Hate Crime or Anti-Racism statutes, India relies on a patchwork of generic criminal laws. This research dives into the Legislative Silence that persists rising instances of racial slurs, physical violence, and systemic exclusion. It argues that racism in India is not just a social ill but a legal failure that requires a precise, penal response. Racism in India, though often under-acknowledged, manifests in multiple forms ranging from verbal abuse and social exclusion to violent hate crimes. Despite constitutional guarantees, India lacks a standalone anti-racism or hate crime law, leading to legal ambiguity and weak enforcement mechanisms.
This research investigates whether the current legal framework sufficiently addresses racial discrimination and explores how courts have responded to this legislative vacuum.
CONSTITUTIONAL FRAMEWORK AND ITS LIMITATIONS
The constitutional commitment to equality in India is primarily embodied in Article 14 of the Indian Constitution, Article 15 of the Indian Constitution, and Article 16 of the Indian Constitution. Although these provisions form a strong normative foundation against discrimination, including racial discrimination, their practical application reveals significant limitations when examined through the lens of racism. Article 14 guarantees equality before the law and equal protection of laws, which in principle extends to all forms of discrimination, including racial discrimination.” The Supreme Court, particularly in E.P. Royappa v. State of Tamil Nadu, expanded the scope of equality by holding that arbitrariness itself violates Article 14. This interpretation theoretically enables challenges against discriminatory State practices targeting specific racial or ethnic groups, such as differential policing or denial of services. However, the limitation lies in the fact that Article 14 primarily governs State action.” “Racial discrimination in India often occurs in everyday social interactions such as refusal of housing, verbal abuse, or workplace bias where no direct State involvement exists. In such cases, Article 14 provides little immediate remedy. ‘Consequently, while it establishes a broad principle of equality”, it does not effectively address private or societal racism, which constitutes the’ majority of racial harm1.
Article 15 is more directly connected to racism, as it explicitly prohibits discrimination on the ground of “race” alongside religion, caste, sex, and place of birth. This inclusion reflects India’s alignment with global human rights standards and recognition of racial discrimination as a constitutional concern. “However, despite this explicit mention, the practical enforcement of Article 15 in cases of racial discrimination remains limited. One major issue is the absence of a clear definition of “race” within the constitutional or statutory framework, which leads to interpretative ambiguity”. Courts in India have historically focused more on caste-based discrimination, often subsuming racial discrimination under broader categories such as regional or ethnic bias. Furthermore, Article 15 is largely enforceable against the State, with limited extension to private spaces under Article 15(2), which itself is restricted to specific public contexts like shops, hotels, and places of public access. Modern “manifestations of racism such as workplace discrimination, online harassment, or housing bias, often fall outside this limited scope”. As a result, although Article 15 formally prohibits racial discrimination, it does not provide a comprehensive or enforceable framework to address the full spectrum of racist conduct2. “Article 16 extends the principle of equality into the domain of public employment by guaranteeing equal opportunity and prohibiting discrimination on similar grounds, including race”. In theory, this provision can address racial discrimination in recruitment or promotion within government institutions. However, its scope is institutionally narrow, as it applies only to public employment and does not regulate discrimination in the private sector, where a significant portion of the workforce operates. Additionally, “the practical application of Article 16 has largely centerer around caste-based reservations and affirmative action policies, with minimal judicial engagement with racial discrimination. This reflects a broader trend in Indian constitutional law, where race has not been developed as a distinct and actionable legal category”. “Therefore, while Article 16 contributes to the equality framework, its relevance to racism” remains limited and underutilized3.
A deeper structural limitation of these constitutional provisions lies in their emphasis on formal equality rather than substantive equality. “Formal equality ensures that laws treat individuals equally on their face, but it does not account for entrenched social hierarchies, stereotypes, and systemic disadvantages that underpin racial discrimination”. Racism is rarely overt or legally sanctioned; instead, it operates through subtle, everyday practices such as exclusion, stereotyping, and differential treatment. “Addressing such discrimination requires a substantive approach that acknowledges social realities and provides targeted remedies”. Although Indian constitutional jurisprudence “has gradually moved towards substantive equality in certain areas, particularly caste-based affirmative action”, this evolution has not been extended meaningfully to racial discrimination4.
Another significant limitation is the predominantly vertical nature of fundamental rights, meaning they are enforceable “against the State rather than private individuals. This creates a regulatory gap, as most instances of racism occur in horizontal relationships between individuals or within private institutions”. For example, discriminatory “practices in renting accommodation, workplace bias, or racial harassment in educational institutions often fall outside the direct reach” of constitutional remedies. In the absence of a comprehensive anti-discrimination statute that applies horizontally, victims are left without effective legal recourse5.
Finally, the “constitutional framework lacks a penal dimension. While it declares discrimination unconstitutional, it does not criminalize racially motivated acts” or provide specific sanctions for such conduct. Victims must therefore rely on general criminal law provisions, which are not designed to capture the unique nature of racial harm. This absence of a clear penal mechanism weakens “both enforcement and deterrence, contributing to the underreporting and normalization of “racism in societ6.
“In essence, while the Constitution of India provides a strong moral and legal commitment against” discrimination, including racism, its structural limitations particularly its focus on State action, lack of definitional clarity, and absence of penal enforcement render it insufficient to address the “complex and lived realities of racial discrimination in contemporary “India.
LIMITATIONS OF EXISTING CRIMINAL LAW PROVISIONS
Although India has transitioned to the” Bharatiya Nyaya Sanhita, the structural limitations in addressing racial discrimination remain largely unchanged. “The new criminal framework, much like its predecessor, does not recognize racism as a distinct offence. Instead, it continues to rely on general provisions aimed at maintaining public order and regulating religious” sensitivities, rather than addressing identity-based harm in a focused manner. “One of the key provisions that may be invoked in cases involving racial elements is Section 196” of the Bharatiya Nyaya Sanhita, which criminalizes acts that promote enmity between different groups on grounds such as religion, race, place of birth, or language. While the inclusion of “race” suggests a potential application to racial discrimination, the primary objective of this provision remains the “preservation of public order and social harmony”. It is generally applied in situations involving group conflict, hate speech affecting communities, or threats to “public tranquility. As a result, it does not effectively address individual experiences of racism, such as verbal abuse, stereotyping, or exclusion, which occur outside the context of collective unrest. The focus on communal harmony rather” than individual dignity limits its relevance in addressing the lived realities of racial discrimination7. Similarly, Section 299 of the Bharatiya Nyaya Sanhita “penalizes intentional acts that insult or outrage religious beliefs. This provision, however, is narrowly tailored to religious identity” and does not extend to racial or ethnic identity. Consequently, acts of discrimination based on physical appearance, ethnicity, or perceived racial background fall outside its scope unless they are linked to religion. “This reflects a broader doctrinal limitation within Indian criminal law, where racial harm is not conceptualized independently, but rather forced into categories” that do not fully capture its nature8.
“The absence of a dedicated anti-racism provision within the Bharatiya Nyaya Sanhita gives rise to broader systemic challenges that affect both the recognition and enforcement of racial discrimination within the criminal justice system”. A major issue is that of under-criminalization, where everyday forms of racism remain outside the scope of criminal law. In contemporary society, racism often manifests through subtle yet “harmful practices such as racial slurs, stereotyping, exclusion, and discriminatory treatment in social and professional settings. These acts, while deeply injurious to dignity and equality, frequently fail to meet the threshold of existing” offences under the BNS, which are primarily designed to address more overt threats to public order or physical harm. “As a result, a significant portion of racial discrimination remains legally invisible, depriving victims of any meaningful” remedy9.
“In addition to substantive gaps, there are considerable procedural barriers within the enforcement system. Law enforcement authorities often lack adequate training and sensitization to identify racial discrimination as a distinct” form of harm. Complaints involving racial elements may be trivialized or recorded under inappropriate provisions, “without recognizing the underlying discriminatory motive. This failure to identify racial intent” not only weakens the prosecution but also undermines the victim’s experience, as the law does not formally acknowledge the nature of the harm suffered. “The absence of clear legal guidelines further contributes to inconsistent application and enforcement”.
Another significant challenge is the lack of data and institutional recognition. There is currently no dedicated category for racial crimes in official crime statistics maintained by institutions such as “the National Crime Records Bureau10. This absence of data creates a cycle of invisibility, where the lack of documented cases leads to the perception that racism is not a serious issue, thereby discouraging legislative and policy intervention”. “Without empirical data, it becomes difficult to assess the” scale and patterns of racial discrimination, resulting in weak policy responses and continued legal neglect.
“In sum, the transition to the BNS has not addressed the fundamental shortcomings” of the criminal law framework in relation to racism. The continued reliance on generalized provisions, combined with procedural and institutional deficiencies, “ensures that racial discrimination remains inadequately recognized and insufficiently addressed within the Indian” legal system.
THE SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT 1989
The Scheduled Castes and “Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter “SC/ST Act”) represents one of the most comprehensive legislative frameworks in India addressing identity-based discrimination” and violence. Enacted to combat entrenched caste-based oppression, the Act goes beyond general criminal law by recognizing that certain forms of discrimination are not merely individual wrongs but are rooted in historical, structural, and systemic inequalities. At its core, the Act acknowledges that members of “Scheduled Castes and Scheduled Tribes have historically been subjected to social exclusion, humiliation, violence, and denial of basic human dignity”. To address this, it creates specific offences commonly referred to as “atrocities” which include acts such as intentional insult, social boycott, dispossession of land, physical violence, “and denial of access to public resources11. Importantly, many of these offences criminalize conduct that would otherwise be treated as minor or non-criminal under general law, thereby recognizing the heightened gravity of identity-based harm”.
“A key strength of the SC/ST Act lies in its victim-centric approach. Unlike general criminal provisions, it incorporates mechanisms such as:
• Special courts for speedy trials”
• “Presumption of culpable mental state in certain cases
• Protection of victims and witnesses”
• Provision for compensation and rehabilitation
“These features reflect a legislative understanding that discrimination operates not only through overt violence but also through systemic marginalization and power imbalances. The Act, therefore, serves as an example of substantive equality in practice, where the law” actively intervenes to correct historical disadvantage rather than merely prohibiting discrimination in abstract terms. However, when examined in the context of racial discrimination, “the SC/ST Act reveals significant limitations. Its scope is explicitly confined to caste and tribal identity, and it does not extend to discrimination based on race, ethnicity, or” physical appearance. This creates a critical gap in the legal framework. Individuals who face discrimination due to their racial or ethnic identity such as persons from “Northeast India, African nationals, or other visibly distinct groups are excluded from the protections of the Act, despite” experiencing forms of harm that are structurally and socially analogous to caste-based discrimination.
Unlike caste-based atrocities, “which are explicitly defined and penalized under the SC/ST Act, racial discrimination remains legally fragmented and largely unrecognized as a distinct category of harm. This gap became particularly evident in the aftermath of the death” of Nido Tania in 2014, a case widely regarded as exposing the realities of racial prejudice in India. Nido Tania, a student from Arunachal Pradesh, died following an altercation in Delhi “where he was allegedly subjected to racial slurs and violence” due to his appearance. The incident highlighted not only the prevalence of racism but also the inadequacy of existing legal provisions in addressing such acts as racially motivated crimes. in response, the “Government of India constituted the Bezbaruah Committee to examine issues faced by people from Northeast” India. The Committee explicitly recognized the existence of racial discrimination and recommended “the introduction of specific legal provisions to address it, including the insertion of a new offence to penalize” acts of racial abuse and discrimination.
“This limitation highlights an important doctrinal issue within Indian law: while caste discrimination has been legally recognized as a structural” injustice requiring targeted intervention, racial discrimination has not been accorded the same status. As a result, similar acts of humiliation, exclusion, or violence may attract significantly different legal consequences depending on the identity of the victim. For instance, an act of public insult targeting a person’s caste may fall squarely within the “SC/ST Act, whereas a similar insult based on racial appearance may not attract any specific penal provision, and may instead be treated as a minor offence under general law. The SC/ST Act also demonstrates what is missing in the context of racial discrimination law in India. It provides a model for how identity-based harm can be effectively addressed through:
• Clear statutory definitions
• Recognition of social context
• Enhanced penalties for targeted offences
• Institutional mechanisms for enforcement”
In contrast, the absence of a parallel framework for racial discrimination results in a legal vacuum, where racism is neither clearly defined nor adequately penalized. This disparity reflects a broader tendency within Indian legal “discourse to prioritize caste as the primary axis of discrimination, while treating race and ethnicity as secondary or incidental concerns12.Furthermore, the existence of such a robust statute for caste-based atrocities undermines” the argument that general criminal law provisions are sufficient to address identity-based harm. “The SC/ST Act itself is evidence” that specialized legislation is necessary to effectively combat discrimination that is deeply embedded in social structures. Its success in bringing visibility and accountability to caste-based violence suggests that a similar approach could be adopted for racial discrimination.
JUDICIAL RESPONSES TO RACIAL DISCRIMINATION AND THEIR LIMITATIONS
In the absence of a dedicated statutory framework addressing racial discrimination, the “Indian judiciary has intermittently attempted to respond to such issues through constitutional interpretation. Relying primarily on the equality guarantees under the Constitution of India particularly Article 14” of the Indian Constitution and Article 15 of the Indian Constitution courts have developed a broad anti-discrimination jurisprudence. However, their engagement with racism as a distinct and identifiable legal harm remains limited, indirect, and largely underdeveloped. Judicial interpretation in India has “significantly expanded the scope of equality beyond formal classification. In Maneka Gandhi v. Union of India, the Supreme Court” emphasized fairness, non-arbitrariness, and due process as essential components of equality, thereby laying the foundation for a more substantive understanding of rights. “While such developments provide a theoretical basis for addressing discriminatory practices, including those rooted” in racial bias, courts have rarely articulated race as a separate axis of discrimination. Instead, instances involving racial prejudice are often subsumed “under broader categories such as dignity, personal liberty, or general inequality, without explicitly recognizing their racial” dimension.
The limited judicial engagement with racism became particularly visible in the aftermath of the death of Nido Tania in 2014. “Although the incident exposed the prevalence of racial discrimination against individuals from Northeast India, the legal response did not evolve into a coherent body of jurisprudence addressing racially motivated” offences. Rather, such incidents continue to be addressed under general criminal provisions, without formal acknowledgment of racial intent or bias as an aggravating factor. “This reflects a broader pattern in which the judiciary recognizes the harm but lacks the doctrinal tools to classify and address it as racism in legal terms”. Indian courts have also, at times, drawn upon international human rights obligations, particularly the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), to strengthen anti-discrimination reasoning. “The judiciary has maintained that international conventions can inform constitutional interpretation where domestic law is silent. While this approach reinforces the normative commitment against racial discrimination, it remains interpretative rather than” enforceable, as international obligations do not automatically create binding rights in the absence of implementing legislation.
Despite these progressive tendencies, judicial responses to racial discrimination remain constrained by several structural limitations. A primary “limitation is their case-specific nature, as courts intervene only when disputes are brought before them, and their decisions are confined to the facts of individual cases. This results in a fragmented and inconsistent approach, where similar incidents of racial discrimination may be treated differently depending” on judicial discretion and contextual factors. “The absence of a uniform legal framework prevents the development of consistent standards for identifying and addressing racial” harm.
The absence of clear legal definitions and standards further complicates judicial intervention. “Concepts such as “race,” “racial discrimination,” and “racial harassment” remain undefined within Indian statutory law, forcing courts to interpret these” issues on an ad hoc basis. This leads to doctrinal uncertainty and weakens the predictability and effectiveness of legal responses. In contrast, areas such as caste discrimination “benefit from detailed statutory frameworks, which guide judicial interpretation and ensure consistency. Moreover, judicial intervention is inherently reactive rather than” preventive. Courts address violations after they occur but do not possess the institutional capacity to implement systemic reforms, establish monitoring mechanisms, or ensure widespread enforcement. “These functions require legislative and executive action, which cannot be substituted by judicial pronouncements alone”.
LIMITATIONS OF JUDICIAL ACTIVISM
• Case-specific remedies lack systemic impact
• Absence of statutory backing limits enforceability
• No uniform standards for punishment or redress
This legislative silence has profound implications for the rule of law. When the law refuses to name a crime, it renders the victim invisible. Without a specific Anti-Racism Act, the Indian police are neither trained nor mandated to record the racial context of a crime. This leads to a systemic under-reporting of hate crimes and a complete lack of empirical data. The National Crime Records Bureau (NCRB) maintains meticulous data on crimes against Scheduled Castes and Tribes, but it has no category for Racial Hate Crimes. In the absence of data, the State often argues that racism in India is an aberration rather than a systemic issue, creating a cyclical justification for legislative inaction.
The historical roots of this problem are deeply embedded in the colonial administration of the British Raj. The colonial government utilized Administrative Anthropology to classify the Indian population into Martial Races and Criminal Tribes. By creating Excluded and Partially Excluded areas, the British physically and legally cordoned off the North-East from the mainland. Post-independence, while India became a global champion against racial apartheid in South Africa, it failed to look inward at its own internal “cultural hierarchies.” The legal system evolved to understand Caste as the primary axis of discrimination, leaving Race and Ethnicity to be subsumed under the broader, and often inadequate, categories of Regionalism or Linguistic differences.
The urgency of this research is underscored by a decade of ignored recommendations. Following the tragic death of Nido Tania, a student from Arunachal Pradesh, in Delhi in 2014, the Union Government constituted the M.P. Bezbaruah Committee. The committee’s report was a watershed moment, documenting the systemic nature of racial prejudice and recommending the insertion of specific sections into the IPC to penalize racial slurs and facilitate faster justice. Yet, ten years later, these recommendations remain largely un- implemented. Even the recent total overhaul of Indian criminal laws into the Bhartiya Nyaya Sanhita (2023) failed to incorporate these crucial changes, representing a lost opportunity to decolonize the law in its truest sense.
Ultimately, this research argues that an Anti-Racism Law is not just a matter of punishment; it is a matter of recognition. By enacting a specific penal statute, the Indian State would finally acknowledge that racial identity is a protected category of human dignity. This introduction serves as the gateway to a deeper analysis of the criminal law challenges posed by this legislative void and the stop-gap judicial responses that have attempted, with limited success, to fill the silence of the Parliament.
Although the Constitution of India prohibits discrimination on the ground of race, constitutional remedies alone are insufficient to address everyday instances of racial abuse, intimidation, and violence, which largely occur between private individuals. In such situations, criminal law becomes the primary mechanism for protection and redress. However, the Indian penal framework does not recognize racism or racial motivation as a distinct offence. Incidents of racial discrimination are therefore addressed under general provisions relating to insult, public order, or hurt, which fail to capture the seriousness and targeted nature of racial harm. This absence of a specific penal provision not only weakens enforcement but also contributes to the social invisibility of racism as a criminal wrong.
Despite India’s reputation for pluralism, racial discrimination still happens on a daily basis. Despite India’s acceptance of international obligations to end racial discrimination and its Constitution’s promise of equality and dignity to all, the country lacks a distinct criminal code that explicitly identifies and punishes racism.
As a result, broad criminal law laws that were not intended to address racial harm are used to deal with acts of racial abuse, hatred, and violence. This frequently results in contradictory court decisions, poor prosecution, and confusion when registering cases. Courts have made limited and case-specific attempts to safeguard victims by interpreting constitutional principles. Therefore, the lack of a distinct anti-racism penal law leaves victims of racial discrimination without an efficient and consistent criminal remedy, creating a gap between legal principles and actual protection on the ground.
As a result, courts are forced to rely on generic rules that do not adequately address the seriousness of racial injury, enforcement agencies lack direction in detecting racial motivation, and victims of racial discrimination lack a clear legal remedy. This circumstance draws attention to a serious weakness in India’s criminal justice system.
CONCLUSION
This study demonstrates that there is a significant gap between the constitutional promise of equality and the lived realities of racial discrimination in India. Although the Constitution provides a strong foundation through principles of equality and non-discrimination, these protections remain largely general in nature and are insufficient to address the specific and complex forms of racial harm experienced in everyday life.
A key concern identified is the absence of a dedicated anti-racism penal law. In its absence, incidents of racial discrimination are addressed through general criminal provisions that neither adequately recognize racial intent nor provide effective remedies. This often results in underreporting, misclassification of offences, and weak enforcement. Additionally, structural limitations within the criminal justice system such as lack of sensitization, procedural barriers, and limited access to justice further restrict the ability of victims to seek meaningful redress.
While the judiciary has attempted to bridge this gap by expanding constitutional interpretations and acknowledging instances of racial discrimination, such interventions remain limited in scope and largely case-specific. They do not substitute for a comprehensive legislative framework.
Therefore, addressing racial discrimination in India requires a more targeted and systematic approach. The introduction of a specific anti-racism law, along with improved institutional mechanisms and greater social awareness, is essential to ensure that the constitutional ideals of equality and dignity are effectively realized in practice rather than remaining merely aspirational.
SUGGESTIONS AND RECOMMENDATIONS
Addressing the challenges associated with racial discrimination in India requires a multi-dimensional and sustained approach that combines legal, institutional, and societal reforms. The following suggestions aim to provide a roadmap for bridging existing gaps and strengthening the overall framework In India, combating racial discrimination necessitates a concerted effort across the legal, institutional, and social spheres in addition to legal recognition. Although constitutional principles offer a solid basis, their practical application is nonetheless restricted in the absence of efficient enforcement tools. Reforms must therefore concentrate on increasing accountability and awareness in order to close the gap between rights and remedies. To ensure equitable implementation, institutional sensitization is equally crucial, particularly among law enforcement and the judiciary. In order to combat ingrained biases and stereotypes, public awareness and education are also very important. To bring about significant and long-lasting change, a comprehensive and persistent approach is therefore necessary.
Enactment of a Specific Anti-Racism Law
The most pressing need is the enactment of a comprehensive anti-racism penal law that explicitly defines and criminalizes racial discrimination. Such legislation should
a) Provide a clear definition of racial discrimination, including direct and indirect forms.
b) Recognize racially motivated offences as aggravated offences with enhanced penalties.
c) Cover various domains, including public spaces, employment, housing, and digital platforms.
A dedicated statute would ensure clarity, consistency, and visibility, enabling more effective enforcement and deterrence. An important step in filling the current legal void in India would be the implementation of a specific anti-racism statute. In order to successfully combat racial discrimination, such a statute should go beyond symbolic acknowledgment and offer precise definitions, criteria, and enforcement procedures. It must acknowledge both overt and covert types of prejudice, including institutional and systemic biases that frequently go unreported. Additionally, categorizing crimes motivated by race as aggravated crimes will increase deterrence and highlight the gravity of such behaviour. In order to provide victims with more protection, the law should also apply to both public and private domains. In the end, a comprehensive statute would give the legal system much-needed accessibility, consistency, and clarity.
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Footnotes
1. Article 14 – Equality Before Law,” PRS Legislative Research
2. Article 15 – Prohibition of Discrimination,” India Code, Ministry of Law and Justice
3. Equality in Public Employment (Article 16),” Legal Service India
4. Substantive Equality and Constitutional Law, Oxford Human Rights Hub
5. Gautam Bhatia, “Horizontal Application of Fundamental Rights,” Indian Constitutional Law Blog
6. Racial Discrimination and International Standards, United Nations OHCHR.
7. Bharatiya Nyaya Sanhita, 2023 – Section 196, India Code
8. Bharatiya Nyaya Sanhita, 2023 – Section 299,” PRS Legislative Research
9. “Everyday Racism and Legal Gaps,” Human Rights Watch
10. “Crime Statistics in India,” National Crime Records Bureau (NCRB)
11. “SC/ST Prevention of Atrocities Act – Key Provisions,” Ministry of Social Justice & Empowerment
12. “Discrimination in India: Beyond Caste,” Human Rights Watch