PROJECT REPORT

OF

INTERNATIONAL HUMAN RIGHTS

ON

INTERNATIONAL CONVENTION FOR ELIMINATION

OF ALL FORMS OF RACIAL
DISCRIMINATION(ICERD) AND COMMITTEE ON
ELIMINATION OF RACIAL DISCRIMINATION(CERD)

(Session: 2021-22)

SUBMITTED TO:- SUBMITTED BY:-

Dr. JASNEET WALIA AASTHA DHAWAN

121/17, SECTION-C
 ACKNOWLEDGEMENT

I have made this project with full dedication and zeal. A lot of people helped me in the
completion of this project.

I am really thankful to my friends and peers whose faith in me kept me going. Most of all, I am
thankful to my subject teacher, Dr Jasneet Walia, who has always been the guiding light and a
source of inspiration, for giving me an opportunity to work on this project

So, with the concrete efforts and utmost intentions, I hereby present this project.

- Aastha Dhawan
 CONTENTS
ROLE OF UNITED NATIONS IN THE PROMOTION AND PROTECTION OF HUMAN
RIGHTS ........................................................................................................................................ 4
WHAT IS DISCRIMINATION? .................................................................................................. 5
WHAT IS ICERD? ....................................................................................................................... 6
What do States agree to when they sign the Convention .............................................................. 6
Impact of ICERD on states ........................................................................................................... 7
POSITIVE IMPACT OF ICERD ................................................................................................ 7
PART I .......................................................................................................................................... 9
Article 1 ....................................................................................................................................... 9
Article 2 ....................................................................................................................................... 9
Article 3 ..................................................................................................................................... 10
Article 4 ..................................................................................................................................... 10
Article 5 ..................................................................................................................................... 11
Article 6 ..................................................................................................................................... 12
Article 7 ..................................................................................................................................... 12
PART II....................................................................................................................................... 12
Article 8 ..................................................................................................................................... 12
Article 9 ..................................................................................................................................... 13
Related Case laws: ...................................................................................................................... 14
Introduction- The Committee on the Elimination of Racial Discrimination (CERD) ................ 17
Nature of the Committee on the Elimination of Racial Discrimination (CERD) ....................... 18
Working procedures .................................................................................................................... 19
a) Reporting system (Article 9) ................................................................................................. 19
b) Inter-state complaints (Articles 11—13)............................................................................... 20
c) Individual communications (Article 14) ............................................................................... 20
RACIAL DISCRIMINATION IN INDIA......................................................................................... 22
GENERAL POLICIES AND OVERALL LEGAL FRAMEWORK .................................................... 23
IMPLEMENTATION OF ARTICLES 2 TO 7 OF THE CONVENTION ...................................... 23
IPC TO BE AMENDED TO PUNISH RACIAL DISCRIMINATION ........................................... 27
 ROLE OF UNITED NATIONS IN THE PROMOTION AND PROTECTION OF HUMAN
RIGHTS

It is universal truth that all people are born equal, that their creator vests in them some inherent,
indivisible, inalienable, non-negotiable and non-derogatory natural and basic rights. Thomas
Hobbes, Rousseau and John Locke, developed the theory of natural rights and argued that natural
rights were not derived from god, but were universal, self-evident, and intuitive. They believed
that natural rights were self-evident to civilized man who lives in the highest form of society.
Human rights are inherent. Everyone is entitled to enjoy his human rights simply by nature of
being human. It is this universality of human rights, which distinguishes them from other types
of rights.

Due to the impact of two World Wars, there was great need to establish the concept of ‘world
peace’ and implement it legally at international level. To have the peaceful world, the
representatives of the assembled nations, at San Francisco on June 26, 1945 adopted the United
Nation Charter, which is the declaration of faith. India is a founder member of United Nations
and Labour Organizations has ratified many of the Conventions, Declaration, Covenants and
Protocols which represents a significant advancement as far as human rights are concerned.

The United Nations Charter is the first international treaty that made a mention of ‘Human
Right’1

The elimination of all forms of discrimination has been one of the core objectives of the United
Nations since its inception. Non-discrimination and equality before the law constitute
fundamental principles of international human rights law and are essential elements of human
dignity. Indeed, the international human rights framework was built upon and operates in
accordance with the fundamental premise of equal respect for all persons and freedom from
discrimination on any ground. In far too many countries, however, people continue to be
excluded, marginalized, distinguished and restricted in the exercise of their rights based on
grounds of race, colour, national, ethnic or social origin, language, sex, religion, political or
other opinion, descent, birth, caste, age, disability, health status, migration status, sexual
orientation or gender identity. The burden is even greater for those who experience multiple
forms of discrimination. Discrimination is also one of the root causes of conflicts and
manifestations of violence.2

1
shodhganga
2
https://www.ohchr.org/EN/AboutUs/Pages/Enhancingequalityandcounteringdiscrimination.aspx
Despite efforts undertaken at the international and national levels, discriminated groups continue
to face intolerance and violence. Combating discrimination is the central focus of three of the
treaty bodies, namely the Committee on the Elimination of Racial Discrimination (CERD), the
Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee
on the Rights of Persons with Disabilities (CRPD). The work of these bodies has helped to
clarify the extent of the obligations of States Parties to protect individuals from discrimination on
grounds of race, colour, national, ethnic or social origin, language, sex, religion, political or
other opinion, descent, birth, caste, age, disability, health status, migration status, sexual
orientation, gender identity or other grounds and areas where awareness about such
discrimination has increased in recent years.

WHAT IS DISCRIMINATION?

According to its most simple definition, racial discrimination refers to unequal treatment of
persons or groups on the basis of their race or ethnicity. In defining racial discrimination, many
scholars and legal advocates distinguish between differential treatment and disparate impact,
creating a two-part definition: Differential treatment occurs when individuals are treated
unequally because of their race. Disparate impact occurs when individuals are treated equally
according to a given set of rules and procedures but when the latter are constructed in ways that
favour members of one group over another .Racism is the belief in the superiority of
one race over another. According to the 1965 UN International Convention on the Elimination of
All Forms of Racial Discrimination,[23]
The term "racial discrimination" shall mean any distinction, exclusion, restriction, or preference
based on race, colour, descent, or national or ethnic origin that has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or any other field of
public life.3

Race is one of 9 ‘protected characteristics’ under the Equality Act 2010. The Equality
Act applies to employers, education providers, people who provide goods and services to the
public and anyone in the public sector. This means it is unlawful for these organizations to
discriminate against anyone on the ground of their race. That includes:

Direct Discrimination: Treating someone less favourably than another person because of their
race or perceived race. It also includes treating someone less favourably because of the race of

3
https://en.m.wikipedia.org/wiki/Racism
someone they are associated with (such as a family member or colleague). An example of direct
race discrimination would be if you are not served in a shop and another person of a different
race is. Direct discrimination on the ground of race can never be justified under the Equality Act.

Indirect Discrimination: Having a policy or practice which seems to treat everyone equally but
has the effect of putting people of a particular race at a disadvantage. For example, in 2011 a boy
of Afro-Caribbean origin was refused entry to his high school for having his hair in cornrows.
The school had a policy that all boys should have a ‘short back and sides’ hairstyle. The court
said this was indirect race discrimination, as the boy was not able to go to school and still follow
his cultural and racial heritage. Indirect discrimination can in some circumstances be justified if
the policy or practice is a proportionate way of achieving a legitimate aim.

Therefore, putting someone at a disadvantage because of their skin colour, nationality, national
or ethnic origin is a particularly cruel and unjust form of discrimination.4

WHAT IS ICERD?

The International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD) marks an important step forward in tackling race discrimination.
The ICERD is a treaty, adopted in 1965 by the United Nations General Assembly. The
UK signed the ICERD on 11 October 1966 and ‘ratified’ it (that is, became bound by it) on 7
March 1969. The ICERD was adopted in response to growing racial discrimination in the 1960s.
Parties to the ICERD ‘condemn racial discrimination’ and commit ‘to the elimination
of racial discrimination in all its forms.’ States promise to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to equality before the law.
States party to the ICERD particularly condemn racial segregation and apartheid. They condemn
all propaganda and organisations based on ideas or theories of superiority of one race or group of
persons of one colour or ethnic origin.
States commit to make it a criminal offence to ‘disseminate’ (spread) ideas based on racial
superiority or hatred. States also agree to criminalise acts of violence, or acts ‘inciting’
(encouraging) violence, against any race or group of persons of another colour or ethnic origin.

WHAT DO STATES AGREE TO WHEN THEY SIGN THE CONVENTION

When a State ratifies the Convention it undertakes:

4
https://rightsinfo.org/explainer-convention-elimination-race-discrimination/
 • not to engage in any act or practice of racial discrimination against individuals,
groups of persons or institutions, and to ensure that public authorities
and institutions do likewise
• not to sponsor, defend or support racial discrimination by any persons or organisations
• to review government, national and local policies, and amend or repeal laws and
regulations which create or perpetuate racial discrimination
• to prohibit and put a stop to racial discrimination by persons, groups and organisations
• to prohibit organisations and propaganda that promote racial superiority, racial hatred,
racial violence or racial discrimination (note, however, that Australia has
submitted a reservation to this requirement and is not fully bound by it)
• to ensure effective protection and remedies for victims of racial discrimination
• to take special measures, as necessary, to ensure that disadvantaged racial groups have
full and equal access to human rights and fundamental freedoms, and
• to combat the prejudices that lead to racial discrimination, and eliminate the barriers
between races, through the use of education and information, and by
encouraging integrationist or multiracial organisations and movements.
Other instruments dealing with race discrimination and health

Other institutions or instruments which deal with the issue of racial discrimination and health
include the WHO Constitution, which in its preamble states that every human being has the
right to enjoy the highest attainable standard of health without distinction of race, and the
Durban Declaration, the outcome of the World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance held in 2001 in Durban, South Africa.
The latter Declaration and its related Programme of Action, include several references to
health services and access to health care systems, the racial discrimination involved, and the
necessity that States take action against such discrimination.

IMPACT OF ICERD ON STATES

POSITIVE IMPACT OF ICERD

Since the entry into force of ICERD, changes in various countries have been attributed to the
positive impact of the Convention. These include:

➢ amendments to national constitutions to include provisions prohibiting racial

discrimination;
 ➢ systematic reviewing of existing laws and regulations leading to the amendment
of those which tend to perpetuate racial discrimination, or the passing of new laws
to satisfy the requirements of the Convention;
➢ making incitement to acts of racial discrimination and racial violence a
punishable offence;
➢ legal guarantees and enforcement procedures against discrimination relating to
the security of persons, political rights, employment, housing, education, or
access to areas and facilities intended for use by the general public;
➢ educational programmes aimed at promoting good relations and tolerance
between racial and ethnic groups;
➢ creation of institutions and agencies to deal with problems of racial discrimination
and to protect the interests of indigenous groups; and,
➢ Governments seeking technical assistance from the UN in such matters as anti-
discrimination legislation and remedies to victims.5

The ICERD has had a significant impact on national laws. Many countries have brought
in legislation that mirrors the standards in ICERD, for example outlawing racial
discrimination at work and in the provision of services such as healthcare, housing and
education.
All States party to the ICERD must regularly submit reports detailing what steps they
have taken to eliminate racial discrimination. The CERD examines each report and then
produces recommendations for each State in question. Non-Governmental Organisations
(NGO) often take the opportunity to submit reports on how they think governments are
doing at tackling race discrimination. The CERD takes NGO reports into account when it
produces its recommendations for different countries. The ICERD has played the key
role in fighting racial discrimination for over sixty years and has inspired laws designed
to combat race discrimination in countries all around the world.

5
https://en.m.wikipedia.org/wiki/International_Convention_on_the_Elimination_of_All_Forms_of_Racial_Discrimina
tion
 PART I

ARTICLE 1

1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life.

2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made
by a State Party to this Convention between citizens and non-citizens.

3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of
States Parties concerning nationality, citizenship or naturalization, provided that such provisions
do not discriminate against any particular nationality.

4. Special measures taken for the sole purpose of securing adequate advancement of certain
racial or ethnic groups or individuals requiring such protection as may be necessary in order to
ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental
freedoms shall not be deemed racial discrimination, provided, however, that such measures do
not, as a consequence, lead to the maintenance of separate rights for different racial groups and
that they shall not be continued after the objectives for which they were taken have been
achieved.

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 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.

2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural
and other fields, special and concrete measures to ensure the adequate development and
protection of certain racial groups or individuals belonging to them, for the purpose of
guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.
These measures shall in no case en tail as a con sequence the maintenance of unequal or separate
rights for different racial groups after the objectives for which they were taken have been
achieved.

ARTICLE 3

States Parties particularly condemn racial segregation and apartheid and undertake to prevent,
prohibit and eradicate all practices of this nature in territories under their jurisdiction.

ARTICLE 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories
of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to
justify or promote racial hatred and discrimination in any form, and undertake to adopt
immediate and positive measures designed to eradicate all incitement to, or acts of, such
discrimination and, to this end, with due regard to the principles embodied in the Universal
Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention,
inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial
superiority or hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour or ethnic origin,
and also the provision of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda
activities, which promote and incite racial discrimination, and shall recognize participation in
such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or
incite racial discrimination.

ARTICLE 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States
Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to
guarantee the right of everyone, without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm,
whether inflicted by government officials or by any individual group or institution;

(c) Political rights, in particular the right to participate in elections-to vote and to stand for
election-on the basis of universal and equal suffrage, to take part in the Government as well as in
the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one's own, and to return to one's country;

(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work,
to protection against unemployment, to equal pay for equal work, to just and favourable
remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general public, such as
transport hotels, restaurants, cafes, theatres and parks.

ARTICLE 6

States Parties shall assure to everyone within their jurisdiction effective protection and remedies,
through the competent national tribunals and other State institutions, against any acts of racial
discrimination which violate his human rights and fundamental freedoms contrary to this
Convention, as well as the right to seek from such tribunals just and adequate reparation or
satisfaction for any damage suffered as a result of such discrimination.

ARTICLE 7

States Parties undertake to adopt immediate and effective measures, particularly in the fields of
teaching, education, culture and information, with a view to combating prejudices which lead to
racial discrimination and to promoting understanding, tolerance and friendship among nations
and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter
of the United Nations, the Universal Declaration of Human Rights, the United Nations
Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

PART II

ARTICLE 8

1. There shall be established a Committee on the Elimination of Racial Discrimination

(hereinafter referred to as the Committee) consisting of eighteen experts of high moral standing
and acknowledged impartiality elected by States Parties from among their nationals, who shall
serve in their personal capacity, consideration being given to equitable geographical distribution
and to the representation of the different forms of civilization as well as of the principal legal
systems.

2. The members of the Committee shall be elected by secret ballot from a list of persons
nominated by the States Parties. Each State Party may nominate one person from among its own
nationals.

3. The initial election shall be held six months after the date of the entry into force of this
Convention. At least three months before the date of each election the Secretary-General of the
United Nations shall address a letter to the States Parties inviting them to submit their
nominations within two months. The Secretary-General shall prepare a list in alphabetical order
of all persons thus nominated, indicating the States Parties which have nominated them, and
shall submit it to the States Parties.

4. Elections of the members of the Committee shall be held at a meeting of States Parties
convened by the Secretary-General at United Nations Headquarters. At that meeting, for which
two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee
shall be nominees who obtain the largest number of votes and an absolute majority of the votes
of the representatives of States Parties present and voting.

5.

(a) The members of the Committee shall be elected for a term of four years. However, the terms
of nine of the members elected at the first election shall expire at the end of two years;
immediately after the first election the names of these nine members shall be chosen by lot by
the Chairman of the Committee;

(b) For the filling of casual vacancies, the State Party whose expert has ceased to function as a
member of the Committee shall appoint another expert from among its nationals, subject to the
approval of the Committee.

6. States Parties shall be responsible for the expenses of the members of the Committee while
they are in performance of Committee duties.

ARTICLE 9

1. States Parties undertake to submit to the Secretary-General of the United Nations, for
consideration by the Committee, a report on the legislative, judicial, administrative or other
measures which they have adopted and which give effect to the provisions of this Convention:
(a) within one year after the entry into force of the Convention for the State concerned; and
(b) thereafter every two years and whenever the Committee so requests. The Committee may
request further information from the States Parties.

2. The Committee shall report annually, through the Secretary General, to the General Assembly
of the United Nations on its activities and may make suggestions and general recommendations
based on the examination of the reports and information received from the States Parties. Such
suggestions and general recommendations shall be reported to the General Assembly together
with comments, if any, from States Parties.

RELATED CASE LAWS:

Ziad Ben Ahmed Habassi v. Denmark6, In the present case the author was refused a loan by a
Danish bank on the sole ground of his non Danish nationality and was told that the nationality
requirement was motivated by the need to ensure that the loan was repaid. In the opinion of the
Committee, however, nationality is not the most appropriate requisite when investigating a
person's will or capacity to reimburse a loan. The applicant's permanent residence or the place
where his employment, property or family ties are to be found may be more relevant in this
context. A citizen may move abroad or have all his property in another country and thus evade
all attempts to enforce a claim of repayment. Accordingly, the Committee finds that, on the basis
of article 2, paragraph (d), of the Convention, it is appropriate to initiate a proper investigation
into the real reasons behind the bank's loan policy vis a vis foreign residents, in order to ascertain
whether or not criteria involving racial discrimination, within the meaning of article 1 of the
Convention, are being applied. The Committee recommends that the State party take measures to
counteract racial discrimination in the loan market, The Committee further recommends that the
State party provide the applicant with reparation or satisfaction commensurate with any damage
he has suffered in consonance with the provisions of 1965 convention

Kashif Ahmad v. Denmark7, Facts: On 16 June 1998 family members and friends had come to
meet pupils after the exams at the Avedore Gymnasium, Hvidovre, as is the usual practice in
Danish high schools. The author and his brother were waiting with a video camera outside an
examination room, where a friend of theirs was taking an exam. While they were waiting, a
teacher, Mr. K.P., asked them to leave. Since they refused the teacher informed the headmaster,
Mr. O.T., who immediately called the police. Mr. O.T. publicly referred to the author and his
brother as "a bunch of monkeys". When the author told Mr. O.T. that he was going to complain

6
CERD/C/54/D/10/1997, UN Committee on the Elimination of Racial Discrimination (CERD), 6 April 1999
7
CERD/C/56/D/16/1999, UN Committee on the Elimination of Racial Discrimination (CERD), 8 May 2000
about the manner in which he had been treated, Mr. K.P. expressed doubts about the
effectiveness of such a complaint and said that the author and his brother were "a bunch of
monkeys" who could not express themselves correctly. When the police arrived the author and
his friends discussed the matter with them. The police promised to have a discussion with Mr.
O.T.

As for the merits, the Committee considers that, in the light of the above findings, the facts as
presented constitute a violation of article 6 of the Convention of 1965.The Committee
recommends to the State party to ensure that the police and the public prosecutors properly
investigate accusations and complaints related to acts of racial discrimination which should be
punishable by law according to article 4 of the Convention of 1965.

Miroslav Lacko v. Slovakia8, facts: On 24 April 1997 the petitioner, accompanied by other
persons of Romany ethnicity, went to the Railway Station Restaurant located in the main railway
station in Kosice, Slovakia, to have a drink. Shortly after entering the restaurant the applicant
and his company were told by a waitress to leave the restaurant. The waitress explained that she
was acting in accordance with an order given by the owner of the restaurant not to serve Roma.
After requesting to speak with her supervisor, the petitioner was directed to a man who explained
that the restaurant was not serving Roma, because several Roma had previously destroyed
equipment in the restaurant. When the petitioner related that neither he nor his company had
damaged any equipment, the person in charge repeated that only polite Roma would be served.

Acting under article 14, paragraph 7 (b), of the Convention of 1965, the Committee recommends
to the State party that it complete its legislation in order to guarantee the right of access to public
places in conformity with article 5 (f) of the Convention and to sanction the refusal of access to
such places for reason of racial discrimination. The Committee also recommends to the State
party to take the necessary measures to ensure that the procedure for the investigation of
violations is not unduly prolonged.

Kamal Quereshi v. Denmark9, Facts: On 26 April 2001, Pia Andersen, a member of the
Executive Board of the Progressive Party, faxed a party press release to media, with the headline
"No to more Mohammedan rapes!". It included the following statements:

"Cultural enrichments taking place in the shape of negative expressions and rapes against us
Danish women, to which we are exposed every day ... Now it's too much, we will not accept
more violations from our foreign citizens, can the Mohammedans not show some respect for us
8
CERD/C/59/D/11/1998, UN Committee on the Elimination of Racial Discrimination (CERD), 9 August 2001
9
CERD/C/63/D/27/2002, UN Committee on the Elimination of Racial Discrimination (CERD), 26 August 2003
Danish women, and behave like the guests they are in our country, then the politicians in the
parliament have to change course and expel all of them."

2.2 On 15 May 2001, Ms Andersen faxed another press release, in relation to neighbourhood
disturbances in Odense, which included the following:

"Engage the military against the Mohammedan terror! ... Dear fellow citizen, it is that war-like
culture these foreigners enrich our country with ... Disrespect for this country's laws, mass-rapes,
violence, abuse of Danish women by shouting things like 'horse', 'Danish pigs' etc.. And now this
civil war-like situation."

2.3 For these two actions, the Odense police charged Ms Andersen with a violation of section
266(b) of the Danish Criminal Code ("section 266(b)"). (1) She was later convicted (see
paragraph 2.8). On 5 September 2001, the Progressive Party placed a newspaper invitation to a
lecture by the former party leader, MogensGlistrup, which read that: "The Bible of the
Muhamedans requires: The infidel shall be killed and slaughtered, until all infidelity has been
removed."

The Committee on the Elimination of Racial Discrimination, acting under article 14, paragraph
7, of the Convention, is of the opinion that the facts before it do not disclose a violation of the
Convention in as much as the State party's action with respect to Ms. Anderson is concerned.

Ahmad Najaati Sadic v. Denmark10, The petitioner is Mr. Ahmad Najaati Sadic, a Danish
citizen of Iraqi origin, born in 1955, who claims to be a victim of violations by Denmark of
article 2, paragraph 1 (d), and article 6 of the Convention. He is represented by counsel, the
Documentation and Advisory Centre on Racial Discrimination (DRC).

In conformity with article 14, paragraph 6 (a), of the Convention, the Committee transmitted the
communication to the State party on 16 August 2002.

Facts of the case

On 25 July 2000, the petitioner was working on a construction site in a public housing area in
Randers, Denmark, for the company "Assent oft Painters and Decorators" owned by Jesper
Christensen. When the petitioner approached Mr. Christensen to claim overdue payments, their
conversation developed into an argument during which Mr. Christensen reportedly made the
following comments to the petitioner: "Push off home, you Arab pig", "Immigrant pig", "Both
you and all Arabs smell", "Disappear from here, God damned idiots and psychopaths." The

10
CERD/C/62/D/25/2002, UN Committee on the Elimination of Racial Discrimination (CERD), 16 April 2002
argument between the complainant and Mr. Christensen was overheard by at least two other
workers, Mr. Carsten Thomassen and Mr. Frank Lasse Hendriksen.

However, the Committee invites the State party to reconsider its legislation, since the restrictive
condition of "broad publicity" or "wider dissemination" required by article 266 b of the Danish
Criminal Code for the criminalization of racial insults does not appear to be fully in conformity
with the requirements of articles 4 and 6 of the Convention.

INTRODUCTION- THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

(CERD)

The Committee on the Elimination of Racial Discrimination (CERD) is the body that monitors
the implementation of the provisions of the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) by its State parties. The States must submit an initial
report one year after acceding to the Convention and then every two years. The Committee
examines each report and lets the State party know about its concerns in the “concluding
observations”.

The Convention has also created three mechanisms that allow the Committee to fulfil its
monitoring functions: the early-warning procedure, the examination of inter-state complaints and
the examination of individual complaints. The members, 18 independent experts, are elected for
a term of four years by State parties. Elections for nine of the eighteen members are held every
two years. The Committee meets in Geneva and normally holds two sessions per year consisting
of three weeks each.

The Committee on the Elimination of Racial Discrimination (CERD) is the independent expert
body appointed to oversee states parties’ implementation of the ICERD. It consists of 18
independent experts who are nationals of states parties to ICERD. They are elected by secret
ballot and serve four-year terms. CERD meets twice annually.

From the very beginning it was clear that the Convention would only be effective if there was an
independent body for monitoring the implementation of the States obligations as indicated by
ICERD. To this end, CERD was established; this set a precedent: five main UN human rights
treaty bodies with comparable constitutions and functions were later created, namely, the Human
Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women
(CEDAW), the Committee against Torture (CAT), the Committee on Economic, Social and
Cultural Rights (CESCR) and the Committee on the Rights of the Child (CRC).
NATURE OF THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION (CERD)

CERD is composed of 18 experts of high moral standing and acknowledged impartiality, who
serve in a personal capacity (Article 8.1 of ICERD). The members are elected for a term of four
years at a meeting of states parties (Articles 8.4 and 5a), and elections take place for half of the
members at two-year intervals (Article 8.5a). In the election of the Committee members,
consideration has to be given to equitable geographical distribution and to the representation of
the different forms of civilization as well as of the principal legal system (Article 8.1). At
present, CERD includes a high number of diplomats or former diplomats among its members
compared to other treaty bodies. This can be attributed to the perception by many states in earlier
years that ICERD was a foreign policy instrument rather than a document with domestic
implications. While this perception has changed, the practice of nominating and electing foreign
policy experts to CERD has persisted.

Under the Convention, the Committee shall establish its own rules of procedure and receive no
directives from outside (Article 10). Indeed, CERD is an autonomous body, which is a common
feature of all the treaty bodies except the CESCR. Nevertheless, strong organizational links with
the UN exist:

• CERD was established under a Convention drafted by the UN Sub-Commission on

Prevention of Discrimination and Protection of Minorities (in 1999 the Sub-Commission
was renamed the Sub-Commission on the Promotion and Protection of Human Rights),
and adopted — through the Commission on Human Rights and the Economic and Social
Council — by the GA.
• The meetings of the Committee are, at present, held twice a year (March and August) for
three to four weeks23 at the United Nations Office in Geneva. Further, the Committee is
serviced by the Secretariat of the United Nations (Office of the High Commissioner for
Human Rights).
• Also significantly, CERD annually reports on its activities to the GA through the
Secretary-General (Article 9.2).
 WORKING PROCEDURES

CERD periodically reviews the legal, judicial, administrative and other steps taken by individual
states parties under ICERD to fulfil their obligations to combat racial discrimination. The
Convention provides a number of instruments to evaluate the states efforts and the overall
situation. Its current mandate does not, however, include the possibility of CERD members
investigating the situation by means of a field visit, although the Committee may send one or
more of its members at the invitation of the country concerned for purposes of a close dialogue
on the spot.

A) REPORTING SYSTEM (ARTICLE 9)11

Under Article 9 of ICERD, and following a decision taken by the Committee at its 38th session
in 1990,12 each state party is obliged to submit: (a) an initial report within one year after the
entry into force of the Convention for the state concerned, to provide comprehensive information
on existing legislative, judicial, administrative or other measures which give effect to the
provisions of ICERD; (b) thereafter, further comprehensive reports every four years that are
expected to contain any new developments that took place after the submission of the previous
report, information that CERD specifically requested, and answers to questions that were not

11
At its 56th session held in March 2000, CERD decided to discuss and adopt a uniform approach in dealing with
states reports, which might alter some of the practices mentioned in this manual.
12
CERD Annual Report, UN doc. A/45/18, para. 29.
fully dealt with from its previous reports; and brief updating reports in the intervening two-year
periods, to literally briefly update the information contained in the comprehensive report; and (c)
special reports whenever the Committee so requests, which are, for example, submitted by states
parties whose situations are being considered by CERD in accordance with early warning
measures and urgent procedures.

B) INTER-STATE COMPLAINTS (ARTICLES 11—13)

All the states parties to the Convention recognize the competence of CERD to receive and act on
a complaint by one of them that another is not giving effect to the provisions of the Convention
(Article 11.1). However, no state party has yet resorted to this procedure, which provides —
unless the matter is settled in another way — for the appointment of an ad hoc conciliation
commission (Article 12).

C) INDIVIDUAL COMMUNICATIONS (ARTICLE 14)

This procedure for communications allows individuals or groups of individuals to submit their
claims as victims of a violation of the Convention directly to CERD, provided that the state(s)
concerned has (have) made a declaration to recognize CERD s competence under Article 14. It
came into operation in 1982 when the 10th of such declarations was made by a state party. The
individual or group must have exhausted all local remedies. In order to submit an individual
complaint, the state party concerned must have recognised the competency of the Committee
according to Article 14 of the ICERD.

L.K. v. The Netherlands13

The following is the summary of the case submitted in accordance with Article 14, the opinion
adopted by the Committee, and the follow-up action taken by the state party:

L.K. filed a complaint to CERD, on the grounds, among others, that the remarks and statements
of the residents were racially discriminatory in nature, that the police did not act expeditiously
and effectively in the investigation of the case, and that the Court of Appeal had prolonged the
proceedings and had relied on incomplete evidence. CERD at its 42nd session in March 1993
decided that the acts of the residents were discriminatory, that the investigation by the police and
prosecution was incomplete, and that when threats inciting racial violence are made, especially
in public and by a group of people, it is incumbent upon the state to investigate with diligence
and expediency. Furthermore, the police and prosecution did not offer effective protection and
13
communication no. 4/1991
remedies within the meaning of Article 6 of the Convention. CERD thus recommended that the
state party review its policy and procedure concerning acts of racial violence, and that it provide
the applicant with relief commensurate with the moral damage he had suffered.

In its 13th periodic report to the Committee,14 the Netherlands Government provided extensive
information on new, stricter anti-discrimination guidelines for the police and the public
prosecutions department, adding that, in issuing these new guidelines, it had also complied with
the relevant recommendations of the Committee in the L.K. case. Moreover, the Government
stated that, in consultation with the applicant’s counsel and the applicant, it had provided
reasonable compensation.15

14
UN doc. CERD/C/319/Add. 2, submitted by the State Party on 1 April 1997 and considered by CERD at its 52nd
session in March 1998
15
Van Boven, T., The petition system under the International Convention on the Elimination of All Forms of Racial
Discrimination; a sobering balance sheet United Nations Yearbook, vol. 4, 2000, pp. 271—87
 RACIAL DISCRIMINATION IN INDIA

United Nations Organizations (UNO), other Inter-governmental Organizations along with

many individuals of International standing like Eleanor Roosevelt (US)and Hansa Mehta
(India) immensely contributed in promoting and propagating the philosophy of human right
and gender equality as the core element in law-making.
India became a party to the International Convention on the Elimination of All Forms of
Racial Discrimination by ratification on 3 December 1968. It has fulfilled its obligations in
accordance with the requirements of article 9 of the Convention and has submitted nine
periodic reports so far. India’s consolidated tenth, eleventh, twelfth and thirteenth report
covers the period 1986 to 1996 and updates information presented in the last consolidated
periodic report. Being a country with a federal system, there are considerable difficulties in
the collation of information from state governments and other institutions on the issue of
"race" per se, which, as will be explained below, does not impinge directly on the
consciousness of the Indian people. The delay in submission of periodic reports has been
mainly on account of this reason. Government of India would like to reassure the Committee
of its highest respect for the provisions of the Convention and the deliberations of the
Committee. In compliance with the general guidelines on the submission of periodic reports,
India’s combined report comprises two parts.16

Human rights – a crucial issue available at: https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/

16

Countries.aspx?CountryCode=IND&Lang=EN (Last visited on October 3, 2019).

 GENERAL POLICIES AND OVERALL LEGAL FRAMEWORK

Any consideration of India’s overall approach and policies towards the elimination of
racial discrimination must begin with an understanding of the racial diversity of India. In
matters related to race, India’s experience may be seen as sui generis and the quintessence
of Indian society is the intermingling of races.
The fusion of these diverse racial elements over centuries has meant that Indian society is
not racially or ethnically homogenous. India’s previous reports to the Committee have in
response to queries from members incorporated information with regard to constitutional
protection enjoyed in India by "Scheduled Castes and Tribes" and the specific measures
adopted by the Government for their economic and social improvement. The term "caste"
denotes a "social" and "class" distinction and is not based on race. It has its origins in the
functional division of Indian society during ancient times. Segments of the Indian
population known as "Scheduled Tribes" are apart of the vast ethnic diversity of India
where intermingling has been less pronounced. Measures of positive discrimination have
been incorporated into the Indian Constitution to enable Scheduled Castes and Scheduled
Tribes, who tend to be among the economically underprivileged classes, to enter the
mainstream of national life and to facilitate their intermingling with the rest of the Indian
population.

IMPLEMENTATION OF ARTICLES 2 TO 7 OF THE CONVENTION

ARTICLE 2

The Constitution of India prohibits discrimination on the grounds of race. Article 15 (1)
provides that the State shall not discriminate against any citizens on grounds of religion,
race, caste,sex,placeofbirth,oranyofthem.Article15(2)providesthatnocitizenshallongrounds
of religion, race, caste, sex, place of birth or any of them be subject to any disability,
liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels
and places of public entertainment or(b)the use of wells ,tanks ,bathing ghats ,roads and
places of public resort, maintained wholly or partly out of State funds or dedicated to the
use of the general public. Article14 of the Indian Constitution equality before the law or
the equal protection of the laws within the territory of India.

The provisions of the Indian Constitution clearly prevent the Government from
sponsoring, defending or supporting racial discrimination on any ground. The
Government has, in fact, been actively supporting persons and organizations fighting
against racial discrimination in South Africa and various other parts of the world. On the
eve of the entry into force of the Constitution, a step towards the abolition of racial
discrimination was taken by enactment of the Removal of Racial Discrimination Act
(XVIIof1949)in terms of which privileges enjoyed by Europeans and Americans under the
British regime in matters of criminal law and procedure were taken away. This prohibition
is further developed by the provisions of the Indian Penal Code. The Indian Penal Code
,under sections153(A),153(B)and505,makes promotion of disharmony, feelings of enmity
and hatred or ill-will on grounds of race punishable with imprisonment and fine. The
State does not encourage anything which tends to strengthen racial divisions.
It has on the contrary encouraged and supported multiracial organizations which led the
struggle against apartheid. The Indian Constitution contains certain special provisions for
Anglo-Indians. Under Article 366 (2), an Anglo-Indian has been defined as "a person
whose father or any of whose other male progenitors in the male line is or was of
European descent but who is domiciled within the territory of India and is or was born
within such territory of parents habitually resident therein". Some temporary preferences
with regard to employment and educational grants for Anglo-Indians for a 10-year period
were provided by the Constitution.
ARTICLE 3

India has consistently condemned racial segregation and apartheid, worked for their
elimination and has been in the forefront of actions of the international community in this
regard. Prior to independence, Mahatma Gandhi has started a passive resistance
movement while living in South Africa. India was the first country to inscribe the issue of
racism on the agenda of the United Nations as early as 1946. This conviction was
translated into a post- independence policy that included imposition of sanctions against
South Africa, severance of all ties with South Africa, active participation in the evolution
of the International Convention on the Elimination of Racial Discrimination and accession
to the International Convention on the Suppression and Punishment of the Crime of
Apartheid.
To give effect to the latter Convention, India enacted the Suppression of Apartheid Act
in 1981. In addition, India played an active role in the Non-Aligned Movement, the
Commonwealth and all other international forums on the question of apartheid and racial
discrimination in South Africa. Particularly, it maintained an active role in the United
Nations Special Committee against Apartheid, the principal United Nations organ keeping
South Africa’s policy of apartheid under constant review. India was also actively
associated with Commonwealth activities on South Africa and was a member of the eight-
member Commonwealth Committee of Foreign Ministers set up at the Vancouver
Commonwealth summit meeting to monitor the implementation of a programme of action
on South Africa.
ARTICLE 5

The rights of all persons to equality before the law and equal protection of the laws within
the territory of India is a fundamental right under the Constitution. Article 21 of the
Constitution
guaranteestoeverypersontherighttolifeandpersonalliberty.Itprovidesthatnopersonshall be
deprived of life or personal liberty except according to procedure established by law. Any
violence or bodily harm inflicted by an individual group or institution comes within the
purview of the normal criminal laws of the country. Full political rights are guaranteed to
all citizens under Article 19 of the Indian Constitution. Article 16 guarantees equality of
opportunity in matters of public employment. India’s political system is based on
parliamentary democracy and elections are periodically held on the basis of universal and
equal adult franchise.
All citizens have full rights to take part in Government and the conduct of public affairs.
Article 325 of the Constitution ensures that no person shall be ineligible for inclusion in
the general electoral roll on grounds only of religion, race, caste, sex or any of them.
Section 125 of the Representation of Peoples Act further provides that any person who in
connection with an election promotes or attempts to promote on the grounds of religion,
race, caste, community or language feelings of enmity shall be punishable with
imprisonment as well as fine. Article 19 of the Constitution guarantees the freedom of
movement and residence, opinion, expression, assembly and association within the
territory of India to all citizens.
The Directive Principles elaborated in Part IV of the Indian Constitution provide for the
right to work, education and public assistance within the limits of the State’s economic
capacity and state that the State shall direct its policy towards securing equal pay for equal
work, just and humane conditions of work, living wages, etc. They further call upon the
State to provide free and compulsory education to children below the age of 14 and
 declare it a duty of the State to improve public health.17
ARTICLE 6

The Indian judiciary, headed by the Supreme Court, is totally independent and all rights
provided by the Indian Constitution are enforceable by the judiciary. The right to move
the Supreme Court is itself a fundamental right. The High Courts at the State level can
also be moved for the enforcement of relevant rights .In cases where violation of rights
demands quick redressal the Supreme Court and High Courts have the power to issue
writs. The structure of the judicial system spreads across the whole country and there is an
entire hierarchy of courts which go down to the grass-roots level, permitting easy access
to all.
Individuals who cannot afford to engage lawyers are provided free legal aid and
assistance. Establishment of a legal system which promotes justice on the basis of equal
opportunity and provision of free legal aid is one of the Directive Principles of State
Policy. The legal community of India has also been highly innovative in promoting Lok
Adalats (people’s courts) and legal aid camps where free legal aid is provided and
administrative authorities are asked to solve legitimate grievances on the spot. The right to
compensation for violation of any human right does not form part of any statute but courts
in India have awarded compensation to victims of violations of human rights in various
cases. The Supreme Court held that if the State violates the human rights of a citizen, a
claim for monetary compensation would be regarded as a public law remedy. (Nilabati
Behera v. State of Orissa)18. Human rights jurisprudence in India has now firmly
established that the Supreme Court or a High Court has power to award compensation
under articles 32 and 226 for a gross violation of human rights.
ARTICLE7
In compliance with its obligations under article 7, India has sought to combat all forms of
prejudice which would lead to situations of racial discrimination or communal hatred. To
this end, deliberate and sustained efforts have been made towards shaping the attitudes of
the youth from the school onwards through the education system and the information
media. The school curriculum in India devotes considerable attention to constitutional

17
Racism a constitutional and Lego- institutional response available at: file:///C:/Users/Banveer
%20Jhinger/Downloads/MPW-RacisminIndia-EqualityConstitutionalismandLego-InstitutionalResponse.pdf
(Last visited on October 3,2019).

18
AIR 1993 SC 1961.
provisions related to fundamental rights. In addition, the values of secularism, respect for
human rights, tolerance, etc. are sought to be imparted through the education system.
The freedom of the press and media in India also ensures that the public enjoys
unhindered benefit of freedom of opinion and expression, which India perceives as
contributing to tolerance and friendship between nations and peoples. In order to ensure
that racial or other prejudices are not propagated, policy guidelines have been evolved by
institutions such as the Press Council of India for private media and the Government for
the State-run media. The Government has also set up a Directorate of Field Publicity
which, inter alia, prepares programmes on non-discrimination, tolerance and friendship at
the grass-roots level and has been using traditional and other means of communication for
the purpose.

IPC TO BE AMENDED TO PUNISH RACIAL DISCRIMINATION

New sections 153C and 509A in Indian Penal Code (IPC) will be introduced in the law
totake the matters of racial discrimination more seriously. Under the proposed section
153C, any words, both spoken and written, or signs attempting to discriminate against
individuals on the basis of race, or indulging in any activity intended to use criminal force
or violence against a particular race will be a non-bailable offence punishable with
imprisonment up to five years and a fine. In addition to this, Section 509A will make any
word, gesture or act intended to insult a member of a particular race lead to imprisonment
that may extend to three years with afine.
There are slew of other legislations enacted under the Constitution of India exclusively
designed to safeguard equality and protection against racial discrimination such as The
Criminal law (Removal of Racial Discrimination Act, 1949), Protection of Civil Rights
Act, 1955, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 and Protection of Human Rights Act, 1993.
National Human Rights Commission of India (NHRC) conducted a study that revealed
54% peoplefromNorth-EastIndiadonotfindNewDelhiasafeandsecureplacetoliveintermsof
ethnictolerance.Whereas,67%peoplefromNorth-Eastfacedethnicandracialdiscrimination in
NewDelhi.
The Bezbaruah Committee had submitted its report in 2014 where under it was recorded
that 86 percent of migrated North-East Indians have faced discrimination and harassment
in Delhi that had left an indelible and humongous psychological and physical impact upon
them.
 BIBLIOGRAPHY AND REFERENCES

• https://legal.un.org/avl/pdf/ha/cerd/cerd_e.pdf
• https://minorityrights.org/wp-content/uploads/old-site-downloads/download-60-
ICERD-A-Guide-for-NGOs.pdf
• https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-
promoting-un-treaties/international-convention-elimination-all
• https://www.mofa.go.jp/policy/human/conv_race/index.html