PERSPECTIVE
OF UN TREATY BODIES ON CASTE
Though the dynamics of the movement for Independence in India gave a visibility to
untouchability and caste discrimination in the international community, this severe form
of discrimination, affecting, at that time, 43 million people, faded from international
consciousness soon after India's Independence in 1947. The Universal Declaration of Human
Rights adopted by the India and the other nations of the world in 1948, just a year after
India's Independence, makes no mention of or reference to caste as a basis for
discrimination, though it does make specific reference to race, colour, gender, ethnicity,
religion, birth, descent, etc.
The UDHR itself is partly a
product of its times when racism and discrimination were primarily understood in the
context of the decline and dismantling of European colonialism. The internal
contradictions of the peoples existing within the colonies were overshadowed by the their
struggles against European colonial rule. This resulted in certain distortions of history
favouring the elite communities of the former European colonies, while marginalising the
subaltern movements from within these same former colonies, such as the Dalit struggle
against untouchability in India. These distortions of history are partly to blame for the
omission of caste from UDHR, CERD and other international human rights treaties.
This omission had serious
negative repercussions on the ability of the UN to address discrimination against Dalits
and on the ability of Dalits to raise their concerns at the UN. For many years, the UN
treaty bodies such as ICCPR, ICESCR, CERD, CEDAW and ILO examined the problems affecting
India - including illiteracy, wretched poverty, bonded labour, child labour, religious
discrimination, human rights violations, gender discrimination - without realising that
caste discrimination is a major factor contributing to these problems and that the
majority of people who suffer from these problems are Dalits. The primary determining
factor of illiteracy, poverty, child labour, etc. in India was invisible to the UN bodies
because none of the conventions made specific reference to caste as a significant basis of
discrimination on par with race, skin colour, gender and ethnicity.
The omission of any explicit
reference to caste meant that the caste dimension of discrimination was often overshadowed
by another dimension of discrimination more easily recognised outside South Asia. A case
of rape against a Dalit women, for example, would be raised under CEDAW, but the caste
dimension of the case would be completely marginalised due to the dominance and wider
recognition of the gender dimension. As a result, Dalits could only make use of limited
spaces in the UN human rights bodies to raise the issue of discrimination based on caste.
For example some human rights organisations raised the issue of discrimination based on
untouchability under the theme of Contemporary Slavery in the World Conference on Human
Rights in Vienna in 1993; in the Working Group on Minorities under the Sub-Commission on
the Promotion and Protection of Human Rights; and, in the Prevention of Discrimination and
Protection of Minorities. Alternate reports were also submitted to some UN treaty bodies
by various human rights organisations and NGOs.
| In recent years, however, the
United Nations human rights bodies have acknowledged and addressed the existence,
prevalence and persistence of caste-based discrimination in India and the rest of South
Asia and the failure of existing national legislations in the countries where Dalits are
residing to protect them from discrimination. |
"Whether we
speak of racism or casteism, we speak of the denial of human rights - whether they be
civil and political, or social, economic and cultural."
- Mr. R.V. Pillai,
Member, UN CERD |
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Though the India ratified
Convention on the Elimination of all forms of Racial Discrimination (CERD) in 1969, it was
not until 1996 that the CERD Committee made its first explicit reference to caste
discrimination, 'untouchability' and Scheduled Castes. In its 1996 State Report to CERD,
the Government of India took the position that caste discrimination did not fall under the
purview of CERD, because caste was not the same as race and the term 'descent' in Article
1 referred exclusively to descent based on race. In its Concluding Observations on the
Government of India's 1996 State Report, CERD opposed the Government's position, stating
that though caste may not be equivalent to race, caste, nevertheless, fell within its
purview under Article 1 of the Convention.
The Committee states that
the term 'descent' mentioned in Article 1 of the Convention does not solely refer to race.
The Committee affirms that the situation of the scheduled castes and scheduled tribes
falls within the scope of the Convention.
Ironically, when the
draft of the CERD did not include the term 'descent' in Article 1, it was the Indian
Government which insisted on including it. Today, the same government is opposing the
inclusion of caste discrimination in CERD and the WCAR under the term 'descent.'
The CERD Committee also explicitly
expressed its concern at the ineffectiveness of existing national legislations intended to
prevent discrimination against the Scheduled Castes and Scheduled Tribes.
It is noted that although constitutional
provisions and legal texts exist to abolish untouchability and to protect the members of
the Scheduled Castes and Tribes, and although social and educational policies have been
adopted to improve the situation of members Scheduled Castes and Tribes and to protect
them from abuses, widespread discrimination against them and the relative impunity of
those who abuse them point to the limited effect of these measures. The Committee is
particularly concerned at reports that people belonging to the scheduled castes and tribes
are often prevented from using public wells or from entering cafes or restaurants and that
their children are sometimes separated from other children in school, in violation of
Article 5 (f) of the Convention."
Likewise, though India ratified
International Covenant on Civil and Political Rights (ICCPR) in 1979, it was almost 20
years later in 1997 when the UN Human Rights Commission first noted serious shortcomings
in the performance of the Government to guarantee basic human rights to Dalits.
Despite measures taken by the
government, members of the Scheduled Castes and Scheduled Tribes . . . continue to endure
severe social discrimination and to suffer disproportionately from many violations of
their rights under the Covenant, inter alia, inter-caste violence, bonded labour and
discrimination of all kinds. It regrets that the de facto perpetuation of the caste system
entrenches social differences and contributes to these violations. The Committee also
recommended that further measures be adopted, including education programmes at national
and state levels to combat all forms of discrimination against these vulnerable groups, in
accordance with Articles 2, paragraph 1 and 26 of the Covenant.
[Consideration of Report by India to the Human Rights Committee, (CCPR/C/79/Add.81),
August 4, 1997].
In 1996 and 1997, the UN Special Rapporteur
on Racism and Racial Discriminaton enquired with the Indian Government about the situation
of 'untouchables' in the country, requesting the relevant information to be sent to him.
The Special Rapporteur's report on the results of his enquiry speaks for it self:
"The report recalls that
communications concerning the situation of untouchables in India were sent to the
government in December 1996 and August 1997. In its reply, the government rejected
allegations that it tolerated untouchability, provided the Special Rapporteur (SR) with a
list of the measures taken to curb discrimination between castes and maintained that a
practice that is so old cannot be eliminated rapidly. The SR noted the discrepancy between
the facts alleged and the government's reply and stated that a visit to India would permit
him to evaluate the situation in cooperation with the government and the communities
concerned."
(E/CN.4/1998/79, paras. 53, 57--59)
Needless to say, the Indian Government has
to date not permitted the Special Rapporteur to visit India as he requested.
When the Indian Government submitted its
first report to the CEDAW Committee in 2000, the Committee raised many questions on the
plight of Dalit women. Noting that Dalit women seem to be as yet an untouched sector, the
Committee asked for various particulars on:
- the status of untouchability
- the impact of the caste system on the
educational status of Dalit women
- atrocities inflicted on Dalit women
- bonded labour
- women involved in manual scavenging
- living standards of women in agriculture,
and minimum wages
- implementation of the SC/ST (Prevention
of Atrocities) Act
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"It
is not really relevant whether discrimination against Dalits is a caste issue or a race
issue, because it is a human issue and affects this particular section of humanity quite
brutally. We must endeavor to break the veil of silence and the veil of denial of the
Indian Government on caste discrimination against Dalits."
- Mr. Milloon Kothari,
UN Special Rapporteur on Housing |
|
The Government of India provided details to
say that various measures - legal and developmental - are being taken for the improvement
of Dalit women. The final comments of the Committee include:
The Committee is concerned with the
continuing discrimination, including violence, suffered by women of the Dalit community,
despite passage of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities
Act),
1989 . . . The Committee considers that widespread poverty, such social practices as the
caste system and son preference . . . present major obstacles to the implementation of the
Convention.
[CEDAW/C/2000/CRP.3/Add, dt.31.4.2000]
UN bodies have also recently addressed
caste-based discrimination in the specific context preparing an agenda for the forthcoming
UN World Conference Against Racism. In a resolution adopted on 31 July 2000 at its
fifty-second session, the UN Sub-Commission on the Promotion and Protection of Human
Rights recommended that,
the World Conference focus, inter alia,
on situation of racism, racial discrimination, xenophobia, related intolerance and ethnic
conflict and other patterns of discrimination, such as contemporary forms of slavery, that
are based on race, colour, social class, minority status, descent, national or ethnic
origin or gender, including topics such as: (a) The link between forms of slavery and
racial and other discrimination based on descent . . . (m) The implications of multiple
identities (race, colour, descent, minority status, national or ethnic origin, gender . .
. (emphasis added)
[Ref. E/CN.4/Sub.2/2000/1/Rev.1 - 01 August, 2000]
At the same fifty-second session, the
Sub-Commission adopted another major resolution (Ref. E/CN.4/Sub.2/2000/L.14 - 09 August,
2000), in which it unambiguously stated the following :
Aware that discrimination based on
occupation and descent has historically been a feature of societies in different regions
of the world and has affected a significant proportion overall of the world's population,
Acknowledging the constitutional,
legislative and administrative measures taken by relevant governments to abolish practices
of discrimination based on occupation and descent,
Concerned, however, at the persistence of
discrimination based on occupation and descent in such societies,
Declares that the discrimination based on
occupation and descent is a form of discrimination prohibited by international law.
[Resolution of the UN Commission on Human Rights, Sub-Commission on the Promotion and
Protection of Human Rights, 52nd Session, 9 August 2000 (E/CN/Sub 2/2000/L 14)]
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In the same resolution, the UN
Sub-Commission entrusted Expert Member Mr. R.K. Goonesekere of Sri Lanka with the task of
preparing a working paper on the topic of discrimination based on occupation and descent,
in order to:
1. Identify communities in which
discrimination based on occupation and descent continues to be experienced in practice;
2. Examine existing constitutional, legislative and administrative measures for the
abolition of such discrimination; and
3. Make any further concrete recommendations and proposals for the effective elimination
of such discrimination as may be appropriate in the light of such examination.
The paper will be presented to the UN
Sub-Commission in the near future and the subject of human rights violations against
communities due to discrimination based on descent and occupation will be considered by
the Sub-Comm again at its 53rd Session in August 2001.
That discrimination based on caste and
related to descent and occupation against Dalits and various other marginalized
communities constitutes a major violation of human rights is non-negotiable and not
subject to question, then, from the perspective of the United Nations human rights
monitoring bodies. These bodies have also made it clear that it is imperative upon the
Indian Government, other United Nations member states as well as the UN monitoring bodies
themselves to take tangible and swift action to incapacitate and eradicate this kind of
discrimination.
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