Bridging the Gap: Towards a Domestic Anti-Racial Discrimination Law in India “A Comparative and Judicial Analysis of the Enforceability Illusion under ICERD”

Abstract

India ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1968, yet more than five decades later has enacted no domestic statute defining or prohibiting racial discrimination as such, and has not made the declaration under Article 14 of the Convention accepting the competence of the CERD Committee to receive individual communications. This article examines the resulting ratification-implementation gap  theorised here as an “enforceability illusion”  through a doctrinal and comparative legal analysis. It traces India’s judicial engagement with the gap across two Supreme Court proceedings a decade apart, arising from the 2014 death of Nido Taniam and the 2025 death of Anjel Chakma, and situates India’s position within a comparative framework drawn from South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA), the United Kingdom’s Equality Act 2010, the United States’ Title VII jurisprudence, and the case law of the European Court of Human Rights and the CERD Committee. Using a comprehensiveness index derived from ICERD’s own textual requirements, the article identifies a definitional, institutional, and remedial void in Indian law, benchmarked against the South African and United Kingdom models. It confronts directly the Supreme Court’s February 2026 observation that formal legal categorisation of persons by race, region, sex or caste risks “treading a regressive path,” arguing that this concern is a design constraint rather than a bar to legislation. Drawing on comparative remedial design — indirect-discrimination justification defences, burden-shifting evidentiary rules, dedicated equality tribunals, and viewpoint-neutral hate-speech provisions the article proposes a conduct-based, treaty-implementation-framed legislative model combining a National Commission with dedicated Equality Benches, and concludes that legislative action, rather than further judicial deferral, is the necessary next step.