IV. Response to India’s denial of ICERD’s prohibition of discrimination on the basis of caste
In response to the Committee’s request that the Government of India submit information on issues pertaining to Scheduled Castes and Scheduled Tribes, India’s periodic report states that “‘caste’ cannot be equated with ‘race’ or covered under ‘descent’ under Article 1 of the Convention.”13 As a result of this position, the periodic report contains no information on Dalits in India and the State Party provides that “As a matter of courtesy to the members of the Committee, if it so desires, the Government of India would be happy to provide information relating to Scheduled Castes and Scheduled Tribes to them though not as a reporting obligation under CERD.”14 India’s position directly contradicts the Committee’s interpretation of Article 1 in General Recommendation XXIX that “discrimination based on ‘descent’ includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status.”15 Furthermore, in its Concluding Observations on the reports submitted by India in 1996, the Committee affirmed “that the situation of the scheduled castes and scheduled tribes falls within the scope of the Convention.”16 In support of this interpretation, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance has included investigations on caste-based discrimination in his mandate.17 Despite the Government of India’s exclusion of caste discrimination in its periodic report to the Committee, the Government has recognized it as an issue in its reports to other international treaty monitoring bodies. In 2000 the CEDAW Committee expressed its concern “with the continuing discrimination, including violence, suffered by women of the Dalit community, despite the passage of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989.”18 In response, the Government of India included the situation of Dalit women in its recent submission of its combined Second and Third periodic reports to the CEDAW Committee.19 Nevertheless, the discussion of Dalit women in this report remains cursory, addressing the issue of violence against Dalit women by simply noting the passage of the Protection of Civil Rights Act, 1955, and the Prevention of Atrocities Act, 1989.20 While the Government details its efforts on other issues in greater detail—including education,21 segregation,22 manual scavenging,23 bonded labor,24 and lack of access to land25—the extent to which these issues remain a problem in India is alarmingly minimized. Caste discrimination in India has also been raised as an issue of serious concern by a number of other treaty bodies and special procedures. In 1997 the Human Rights Committee noted that scheduled castes in India “continue to endure severe social discrimination and to suffer disproportionately from many violations of their rights under the [ICCPR], inter alia inter-caste violence, bonded labour and discrimination of all kinds.” And as recently as 2004 the Committee on the Rights of the Child was “deeply concerned at persistent and significant social discrimination against children belonging to Scheduled Castes and Tribes and other tribal groups.”26 Additionally, the UN Special Rapporteurs on education,27 adequate housing,28 the right to food,29 violence against women,30 and torture31 have all included investigations on caste-based discrimination in their mandate and have cited India as a country of particular concern. Because one’s caste can be determinative of one’s occupation, caste discrimination is also referred to as discrimination on the basis of “work and descent.” The UN Sub-Commission on the Promotion and Protection of Human Rights passed a resolution in August 2000 reaffirming that discrimination based on work and descent is prohibited under international human rights law.32 In his 2001 report commissioned by that same resolution, Sub-Commission expert R.K.W. Goonesekere underscored that caste systems are inherently economic and social in their consequences and represent a deeply oppressive form of work and descent-based discrimination.33 In 2004 the Sub-Commission appointed two Rapporteurs to undertake “a comprehensive study on discrimination based on work and descent.” The Rapporteurs were tasked with: determining the impact that the practices and policies of governments, local authorities, private sector entities, schools, religious institutions, and the media have had on discrimination based on work and descent; obtaining information on existing measures taken by governments, national human rights groups, the UN, and NGOs to combat discrimination based on work and descent; and drafting a set of principles or guidelines setting forth the measures necessary to effectively eliminate discrimination based on work and descent. The appointment of the Rapporteurs was approved by the CHR at its 61st Session in April 2005.34 13 Government of India, Fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth periodic reports of the Republic of India, due on January 4, 1998, 2000, 2002, 2004, and 2006 submitted in one document on January 26, 2006, CERD/C/IND/19, para. 16 (March 29, 2006). 14 Ibid., para. 17. 15 CERD, General Recommendation XXIX (2002) – Article 1(1) regarding descent, para. 7. 16 Report of the Committee on the Elimination of Racial Discrimination, A/51/18, 1996, http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/76ebd2611b2261d2c12563e90058d7d7/$FILE/N9625738.pdf (accessed February 7, 2007), para. 352. 17 The attention of the Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia, and related intolerance (“Special Rapporteur on racism”) was first drawn to the situation of Dalits in India in 1996 (E/CN.4/1997/71, para. 127). In 1999, The Special Rapporteur on racism [Mr. Maurice Glèlè-Ahanhanzo (1993 – 2002)] reported to the Commission on Human Rights that specific attention should be given to the situation of “untouchables” in India (E/CN.4/1999/15, January 15, 1999, para. 100). For recent inclusions of caste discrimination in the Special Rapporteur on racism’s reports, see e.g., [Mr. Doudou Diène (2002 – present)] Updated Study 2006 (62nd CHR session), Report para. 17 (E/CN.4/2006/54) (referring generally to caste systems in Asia and Africa as hierarchical systems of discrimination equivalent to racial discrimination), and Questionnaires to India, para. 17 (E.CN.4.2005/18) (citing a letter of allegation jointly sent by the Special Rapporteur on racism and the Special Rapporteur on violence against women to the Government of India concerning an alleged attack by a group of 200 people on a Dalit settlement in Kalapatti village, Coimbatore district, Tamil Nadu, on May 16, 2004). 18 CEDAW’s Concluding Observations: India, (2000), para. 74. 19 India’s Combined second and third periodic reports to CEDAW, October 19, 2005, CEDAW/C/IND/2-3. 20 Ibid., para.20. 21 Ibid., para. 98. 22 Ibid., para. 99. 23 Ibid., para. 100. 24 Ibid., para. 101. 25 Ibid., para. 102. 26 Convention on the Rights of the Child, “Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Concluding Observations, India,” CRC/C/15/Add.228, (2004), http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/35e5ebb72fcfadbac1256e83004a29a8/$FILE/G0440552.pdf, para. 27 (accessed February 7, 2007). 27 Special Rapporteur on the right to education, Mr. V. Muñoz Villalobos, Economic, Social and Cultural Rights: Girls’ right to education (62nd session) February 8, 2006, paras. 82-85 (highlighting the double discrimination faced by Dalit girls and its impact on their right to education). 28 Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Miloon Khotari, Annual Report 2005 (61st CHR session) March 3, 2005, para. 62 (concerned with the human rights violations of Dalits because they “are prevented from owning land and are forced to live on the outskirts of villages, often on barren land,” and “land reforms intended to benefit the rural poor and Dalits have been ineffective due to weak legislative provisions, inadequate implementation, and a lack of State commitment”). 29 Special Rapporteur on the right to food, Report of Mr. Jean Ziegler (62nd CHR session), Mission to India, para. 11 (concerned that scheduled castes and tribes “suffer most from hunger and malnutrition,” and discrimination forces Dalits into bonded labor, prevents them from owning land and restricts them from using public facilities, like village wells). 30 Special Rapporteur on violence against women, its causes and consequences, Report of Dr. Yakin Erturk (61st CHR session), Communications to and from Governments (concerned with attacks on Dalits by upper-caste persons). Report of Ms. Radhika Coomaraswamy (57th CHR Session), January 23, 2001, para. 85 (concluding from reports she received that women from certain castes and ethnic or religious minorities appear to be at risk of being targeted by the police). 31 Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Report of Mr. Theo van Boven (61st Session), March 30, 2005, pp. 773, 784, 1172 (reporting on instances of police abuse of Dalits). 32 See Discrimination Based on Work and Descent, Sub-Commission on Promotion & Protection of Human Rights. Resolution 2000/4 (52nd Session), U.N. Doc. E/CN.4/SUB.2/RES/2000/4 (2000). 33 Prevention of Discrimination and Protection of Indigenous Peoples and Minorities: Working Paper by Mr. Rajendra Kalidas Wimala Gooneskere on the Topic of Discrimination Based on Work and Descent, Submitted Pursuant to Sub-Commission Resolution 2000/4, Sub-Commission on Promotion & Protection of Human Rights (53rd Session), U.N. Doc. E/CN.4/Sub.2/2001/16 (2001) (indicating that:
The report also provides numerous examples of such violations. 34 Discrimination Based on Work and Descent, Sub-Commission on Promotion & Protection of Human Rights. Resolution 2004/17, 56th Session, U.N. Doc. E/CN.4/Sub.2/2004/L.8 (2004) (reaffirming Resolution 2000/4 and appointing two Special Rapporteurs to prepare “a comprehensive study on discrimination based on work and descent”), approved by U.N. Commission on Human Rights, 61st Session (2005). |