The Supreme Court’s refusal to entertain a petition seeking formulation of guidelines to recognise racial slur as a separate category of hate crime on the plea that classifying crimes based on the victim’s identity could risk dividing society is in complete dissonance with the realities of Indian life. That the opinion was given by a bench headed by the Chief Justice of India marks a humongous failure on the part of the judiciary to respond appropriately to the vast dissimilarities and discriminative practices in that it questions the very basics of certain laws such as the SC/ST (Prevention of Atrocities) Act, 1989, Section 498 of Indian Penal Code (now Section 85 of the Bharatiya Nyaya Sanhita) or the Protection of Women from Domestic Violence Act, 2005.
The court has a point in that sections of people are discriminated against even 75 years after the country got independence. There must have been movements and systems in place so that every citizen is treated equally irrespective of their religion, race, caste, sex, or place of birth as suggested by Articles 14 and 15 of the Constitution.The makers of the Constitution, however, did not stop at these articles but went on and added Article 16 which provided for reservation in jobs and admission educational institutions for socially and educationally backwards communities and Article 17 which abolishes untouchability and forbids its practice in any form. These articles take into consideration the vulnerability of the people who are at the receiving end of the societal practices and offer them special protection and consideration.
It is a pious thought that all citizens are equally entitled to legal protection and there need not be special considerations for anyone but the reality is that there is a disconnect between theory and practice; the laws mentioned above seek to address them. It is the responsibility of the judiciary to prod society to come up with processes, including laws and guidelines, that can end discriminatory practices. Acting as if Indian society recognises equality as its basic creed and practises it unfailingly is unrealistic, and moreover, unjust.
