Sketching out the shades of discrimination laws: Colourism in context

The Black Lives Matter campaign inspired informed debates and discussions on racism and colourism across the world. In this backdrop, several notable beauty conglomerates recently decided to remove words like white/whitening and fair/fairness from their products packs and communication with a view to evolving their skin care portfolio to a more inclusive vision of beauty. This move has resurfaced the debate on whether colour is as much a prohibited ground of discrimination as is race, among several other issues. Race and colour are seemingly overlapping but distinct grounds of discrimination. Although colourism is deeply entrenched in our culture, skin colour is yet to be popularly considered as a prohibited ground of discrimination in Bangladesh. We submit that a creative interpretation of the provisions on discrimination in the Constitution on their own and a reading of the said provisions and international jurisprudence in tandem can accommodate 'colour' as a prohibited ground of discrimination. Additionally, we advocate for legislative and policy measures addressing commercials of products perpetuating a particular type of colour-based superiority.

The provisions pertaining to equality were among the least disputed or discussed provisions of the Bangladesh Constitution in the Constituent Assembly Debates. Articles 28(1) and 29(2) list 'race' as one of the prohibited grounds of discrimination. The English text gives the impression that 'colour' is not a prohibited ground of discrimination as such. However, the proviso to article 153(3) of the Constitution states that in the event of conflict between the Bengali and the English text, the former shall prevail. The Bengali equivalent for the word race is 'barno', which is inclusive of both 'colour' and 'race'. In an event of conflict between the inclusive expression 'barno' and exclusionary English terminology, 'race', 'barno' shall prevail. This implies that even a very literal interpretation may make room for having colour as a prohibited ground of discrimination.

If such an interpretation fails to stand scrutiny, resort may be made to comparative constitutional law jurisprudence concerning 'discrimination on the basis of unlisted grounds.' As far as such jurisprudence is concerned, discrimination based on listed grounds is presumed to be unfair; but no such presumption exists in case of discrimination based on unlisted grounds. However, in any event when the party having the onus to prove that the discrimination based on any of the unlisted grounds is unfair, succeeds in proving so, his/her claim shall stand [see, Larbi-Odam v MEC for Education (North-West Province) (Constitutional Court of South Africa) (1998)]. Additionally, the duty of domestic courts not to straightaway ignore international obligations (as espoused in a number of judicial decisions in Bangladesh) and to let international law fill in for 'vacuum' in domestic law, too can come in play.

While including 'colour' as a ground of discrimination seems an arduous task (if not impossible) in the domestic context, international jurisprudence suggests otherwise. Historically, colour and race were used almost interchangeably. The issue arose while drafting the non-discrimination provisions of the Universal Declaration of Human Rights (UDHR). While one group supported retaining the four original grounds of the UN Charter (i.e. race, sex, language and religion) and understood race to include colour, others raised concerns that race and colour are not concepts that 'necessarily cover one another'. Ultimately, both race and colour were included as prohibited grounds of discrimination.

Both race and colour have been recognised as prohibited grounds in major human rights treaties to which Bangladesh is a party, including International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). General Comment no. 18 of the UN Human Rights Committee notes that some prohibited grounds of the ICCPR are absent in several Constitutions and inquires about the significance of such omission. General Comment no. 31 reaffirms a state party's obligation under article 2 of the ICCPR to adopt legislative, judicial and administrative actions to uphold the rights guaranteed under the Covenant. In the same vein, the Committee in its 2017 Concluding Observations of Bangladesh's initial report reiterates the need for an anti-discrimination law containing a 'comprehensive list of grounds' including colour.  The absence of anti-discrimination laws has also been highlighted in multiple observations of the Committee on the Elimination of Racial Discrimination (CERD) to Bangladesh's state party reports.

Over the past decades, civil societies and activists have consistently expressed disapproval of the beauty brands and their advertising tactic of portraying dark-skinned women as unattractive, unhappy and professionally unsuccessful individuals. Prohibiting beauty brands from selling skin lightening products may be seen as an encroachment on their business. However, allowing them to air commercials portraying the superiority of a particular skin colour (which in turn creates artificial colour-based hierarchies in society) may not be condoned either. It is also very difficult to draw a separating line between the effects of manufacturing a skin lightening product and those of its commercials.

Such commercials perpetuate a social stereotype on the basis of colour which, alongside giving birth to many societal evils, tends to have a disproportionate impact across sections of the society who are likely to fall for drastic or immensely unsafe measures for lightening their skin colour. Some countries have adopted specific legislative measures addressing discrimination in advertising. Finland's Consumer Protection Law was amended in 2008 to prohibit discriminatory advertising (on an array of non-exhaustive grounds). A self-regulating ethics council came in place to oversee such matters. Similarly, in India, Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Bill 2020, has sought to bring skin lightening advertisements within the purview of law. 

The recent decision of the beauty brands of renaming their products seems commendable. However, this decision also has the potential of downplaying the societal stereotypes perpetuated over the years. At this point, the issue of letting colourism sustain across generations through commercials and the sale of skin lightening products need to be rethought.

THE WRITERS ARE LECTURER IN LAW, BANGLADESH UNIVERSITY OF PROFESSIONALS AND LLM STUDENT, UNIVERSITY OF DHAKA, RESPECTIVELY.

N.B. The sentence 'the Bengali equivalent for the word race is barno' has seemingly created con-fusion amongst some of our readers, due especially to its impreciseness. We would like to clarify that it does not imply constitutional equivalence as such. Barno does not appear in the Bengali text for the term race, rather it appears for the term caste. However, our argument is premised on the literal import of the expression 'barno'. Neither race nor caste can conveniently include 'colour'. Barno, on the other hand, is of wide import and can be used to refer to all three- colour, caste and race. In any event of conflict between the Bengali and English text, the former shall prevail and make room for 'colour'. The write-up connects the concepts of color and race in light of the growing claims of intra-racial discrimination in several jurisdictions and the pre-existing debates surrounding whether color is included within the ambit of race. It will not be out of place to mention (rather will add clarity) that in light of our argument, in any event of conflict in terms of interpreting caste and barno, barno shall prevail and shall accommodate the nuances of both 'caste' and 'colour'.