A global juridicial approach to the invisibilisation of minorities discrimination

This thesis analyses the visibility or invisibility of core minority rights’ violations through the judicial system and the medium of judicial rulings. It examines cases of discriminatory legislation, practices and policies by the State and civil agents to see how the judiciary contributes to – or resists – discrimination that may be working at different levels, institutional and individual. Judicial decisions can be studied to evaluate the extent to which they may enact State policies. So too, agents like bureaucrats, play a critical role in implementing legislation on the ground level, and their practices towards minority groups are equally worthy of analysis. Whilst the judiciary has a legal and moral obligation to respect national legislation, judges are also expected to exercise their independence, and maintain neutrality.

The study follows two principal approaches. Firstly, a national approach with a focus on the case of India, which is not part of a regional human rights system. It will examine the case of a minority within the Muslim community in the Northeast state of Assam who are being deprived of their nationality in arbitrary ways. Secondly, the thesis adheres to an international perspective with a special focus on two regional human rights systems – the Inter-American Court of Human Rights and the European Court of Human Rights – to study their role in verifying States’ respect for universal human rights principles. This analysis of regional courts allows us to check whether Indian judicial interpretations are consistent with interpretations in other regional systems regarding discrimination against minorities. If India may have retained a degree of anxiety about possible impositions of legal norms and principles coming from Western institutions because of its colonial past, it cannot extend its antipathy towards colonial legacies to Latin American States or their judicial systems and models.