Affirming that, as declared in article 2 of the Universal Declaration of Human Rights, everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,
1. Declares that discrimination based on work and descent is a form of discrimination prohibited by international human rights law;
(a) Identify communities in which discrimination based on occupation and descent continues o be experienced in practice;
5. Decides to continue consideration of this question at its fifty-third session under the same agenda item.
2. The Universal Declaration of Human Rights states "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood" (art. 1). In article 2 it is expressly stated that everyone is entitled to all the rights and freedoms without distinction of any kind "such as race ... national or social origin, property, birth or other status".
3. Like other forms of discrimination, therefore, any distinction, exclusion, restriction or preference based on work and descent which has the purpose or effect of nullifying or impeding the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms contravenes the spirit and letter of international human rights law.
4. The International Covenant on Civil and Political Rights recognizes that all persons are entitled to the equal protection of the law "without any discrimination" (art. 26). The International Convention on the Elimination of All Forms of Racial Discrimination specifically prohibits discrimination based on "descent" which the Committee on the Elimination of Racial Discrimination (CERD) has interpreted to mean not solely race but tribal or caste distinctions as well. In its General Recommendation XIV CERD stated that "in seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent or national or ethnic origin".
5. The International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone "to gain his living by work which he freely chooses or accepts" (article 6, para. 1).
6. The International Labour Organization Discrimination (Employment and Occupation) Convention, 1958 (No. 111) calls on States to "eliminate discrimination based on race ... national extraction or social origin", in the matter of employment or occupation. The United Nations Educational, Scientific and Cultural Organization Convention against Discrimination in Education of 1960 asserts the principle of non-discrimination in education based on "race ...national or social origin, economic condition or birth".
7. Discrimination based on work and descent is a long-standing practice in many societies throughout the world and affects a large portion of the world's population. Discrimination based on descent manifests itself most notably in caste- (or tribe-) based distinctions. These distinctions, determined by birth, result in serious violations across the full spectrum of civil, cultural, economic, political and social rights. Likewise, the nature of a person's work or occupation is often the reason for, or a result of, discrimination against the person. Persons who perform the least desirable jobs in a society are often victims of double discrimination, suffering first from the nature of the work they must perform and suffering again by the denial of their rights because they perform work that is unacceptable. In most cases, a person's descent determines or is intimately connected with the type of work they are afforded in the society. Victims of discrimination based on descent are singled out, not because of a difference in physical appearance or race, but rather by their membership in an endogamous social group that has been isolated socially and occupationally from other groups in the society.
I. COMMUNITIES WHERE DISCRIMINATION BASED ON WORK AND DESCENT IS EXPERIENCED
9. In 1937, Dr. B.R. Ambedkar, a learned and respected Indian leader and advocate of the rights of untouchables - or Dalits, as he called them - and himself an untouchable, announced that he had made a momentous decision to renounce the religion of his birth, Hinduism, because he traced a great social injustice in contemporary Indian society, namely the caste system, to Hindu scriptures. Mahatma Gandhi, the spiritual leader of India, who was moved by the plight of the untouchables, was himself not prepared to blame Hinduism for the appalling discrimination against millions of Indians by other Indians. In a response to Dr. Ambedkar, the Mahatma said: "Caste has nothing to do with religion. It is a custom whose origin I do not know and do not need to know for the satisfaction of my spiritual hunger ... The law of Varna teaches us that each one of us earns our bread by following the ancestral calling. It defines not our rights but our duties. It also follows that there is no calling too low and none too high. All are good, lawful and absolutely equal in status."2
10. The Mandal Commission on the reservation of government jobs for Scheduled Tribes and Other Backward Classes in its 1980 report said of the caste system: "The social ranks and their respective duties, ordained by God for humanity, were intended to remain fixed and unmovable. Like the limbs of the body they cannot properly exchange either their place or function."3
11. The debate as to whether caste is or is not derived from Hindu scriptures need not detain us because 85 per cent of India's 1 billion people remain Hindu. Only a few million followed Dr. Ambedkar and became Buddhists. Lesser numbers became converts to Christianity and Islam. India is a stratified or compartmental society not based on class but on descent or occupation. It has been so for many thousand years. Dr. Ambedkar, as Minister of Law and Chairman of the Drafting Committee of the Constituent Assembly, was responsible for the many provisions in the Constitution intended to fulfil the promise in the preamble to secure to all citizens justice and equality of status and opportunity.
12. Besides untouchables, there are other underprivileged segments of Indian society who are grouped as Scheduled Tribes and Other Backward Classes and they number many millions. Scheduled Tribes are distinguished by tribal characteristics such as social, religious, linguistic and cultural distinctions. In addition, they are concentrated in certain geographical areas. While they are officially recognized as deserving of special treatment, the policy towards them is to effect improvements of their conditions while at the same time preserving their distinctiveness and giving them a measure of autonomy. In the case of Other Backward Classes there is the initial difficulty of identifying the persons who fit the description.4
13. They appear to include all religious minorities who are economically poor and lacking in educational opportunities. The Mandal Commission report identified 3,743 sub-castes as being socially and educationally backward, and found that Other Backward Classes constituted 52 per cent of the population. That was in addition to the Scheduled Castes/Tribes, which constituted a separate category of 22.5 per cent of the population. Dalits estimate that they constitute 19 per cent of the population, or 160 million people. The present study does not include Scheduled Tribes and Other Backward Classes as the discrimination against them, where it exists, cannot strictly be said to be based on work or descent.
14. Those who suffer discrimination based on descent or work have received different names. Official terms were "untouchables", "depressed classes" or "scheduled castes". For Gandhi, they were "Harijans" or "people of God" rather than "untouchables". Today they are known as Dalits, or "oppressed people" or "broken people".
15. Hindu society recognizes a caste hierarchy of four classes or varnas: Brahmins (priests and scholars); Kshathriyas (rulers and soldiers); Vaishyas (merchants and farmers); and Sudras (servant class). The Sudras, the lowest caste, are seen as persons who exist to serve the higher castes or "twice born". Servility is their badge and with it loss of dignity. According to some researchers there were upper Sudras and lower Sudras, depending on the work they performed. Artisans, carpenters, barbers, washermen and the like belonged to the former while those engaged in unclean work such as sweepers, scavengers, cobblers, cremation workers, hide and leather workers, agricultural labourers, toddy tappers_belonged to the latter. Those considered to be at the lower end of the Sudras are not in fact Sudras but are untouchables who are outside the caste system or "outcastes", or they constitute a distinct fifth caste.
16. In the mind of the upper castes untouchables are polluted by their work and polluting to others by contact which must therefore be avoided at all costs. A corollary is pointed out by the Mandal Commission: "The real triumph of the caste system lies not in upholding the supremacy of the Brahmin, but in conditioning the consciousness of the lower castes in accepting their inferior status in the ritual hierarchy as part of the natural order of things."5
17. Untouchability conveys "a sense of impurity and defilement. It implies certain socio-religious disabilities. It includes customs, practices sanctioned by the rigid Indian caste system whereby persons belonging to the Scheduled Castes were debarred from entering Hindu temples, public places, streets, public conveyances, eating places, educational institutions, etc."6 There are other disadvantages - segregation in colonies in the village, denial of land rights, low wages for manual work, denial of access to services, e.g. by barbers and washermen, to health care and education. Untouchables belong to castes which have the lowest ritual standing and often the most depressed economic condition.
18. In the course of time occupations may have changed and many Dalits are now engaged in agriculture as landless labourers, as this activity has been opened to all. But this is not so in the case of other occupations to which access is not permitted by caste traditions. It is not merely the indignities heaped on Dalits that make them an oppressed people. Because of the social ostracism and economic deprivation they suffer, they often fall prey to the most serious forms of persecution in their society, including killings, mutilation, rape, arson, destruction of property and other forms of violence (sometimes regrettably by State agents) when they assert their rights.
19. The Government of India has taken several steps to prohibit the practice of untouchability. First, and most importantly, the Government has recognized the existence of the problem. Second, the Government has made determined efforts to deal with it. The _____Men who tap the sap of palm trees, used for drinking and the brewing of spirits. Constitution of India in its Bill of Rights (Part III), besides guaranteeing to all citizens the basic civil and political rights and fundamental freedoms has special provisions that are directed at the practice of caste discrimination: (a) Article 15 prohibits subjection to a disadvantage based on caste with respect to access to shops, public restaurants, etc. or to the use of wells, roads and public places maintained out of State funds;
20. Articles 15 (4) and 16 (4) recognize beneficial discrimination or protective/compensatory/preferential discrimination, or simply affirmative action. Indeed, in the governance of the country the State is enjoined by a directive principle of State policy (art. 46) to "promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation". But it is important to note that in the implementation of these provisions the efficiency of the administration is not to be sacrificed (art. 355).
21. Other provisions in the Constitution addressing caste discrimination are:
22. To bolster the constitutional provisions, India has passed several laws:
23. It is an impressive list of the actions that have been taken by the Government of India. That improvements have taken place cannot be doubted and credit should probably go to the National Human Rights Commission, the National Commission for Women, the Scheduled Castes and Scheduled Tribes Commission and the National Commission for Safai Karamcharis. A micro-level study in the States of Karnataka, Gujerat, Andra Pradesh and Orissa has led a scholar to conclude that: "Like other institutions, caste- and untouchability-based discrimination in the Indian society has undergone change. The practice of untouchability and resultant discrimination has reduced in the public sphere, like panchyat offices, schools, use of public roads, public transport, health and medical services, services of shops (for buying goods) and services rendered by the tailor, barber, eating places and tea shops in large villages and urban areas. But even here discrimination in various subtle forms prevail."9
24. If in urban areas it is more the hidden or invisible discrimination that a Dalit would encounter, in rural areas where three fourths of the Dalits live open discrimination in all its forms is fairly widespread. The overall picture is depressing. In school education there is a marked literacy gap between the Scheduled Castes and the rest of the population. It is reported that reserved quotas in the universities are not filled, especially in the technical and professional courses. There is reportedly poor representation of Scheduled Castes in teaching posts and caste clustering. There has been inadequate distribution of lands among the Scheduled Castes promised under the Ceiling of Land Acts. The shame of bonded labour remains for millions, including a large number of children. The hideous occupation of manual scavenging continues except in a few states. If reports are to be believed no real effort has been made to improve the conditions of work for these wretched people who out of sheer necessity find that it is their lot to clean dry latrines.
25. The reservation of quotas in government employment and education has run into the vexed problem of having to determine whether caste alone should be the test or whether caste should be combined with economic need. Quota reservations in state employment are being filled in lower category jobs such as sweepers, peons and clerks. In the absence of quotas there is hardly any representation in the defence forces, scientific establishments and the judiciary. The Scheduled Castes have not benefited from the economic progress made in the country in the 50 years since independence because there has been no policy in the allocation of resources. In the rapidly growing private sector there does not seem to be any opportunities for advancement for members of Scheduled Castes.
26. At the same time atrocities are being committed almost daily against Dalits and they go unpunished. These have been researched and documented, mainly by Dalit organizations, in several publications in horrifying detail.10 The laws are there, but there is a clear lack of will on the part of law enforcement officers to take action owing to caste prejudice on their part or deference shown to higher-caste perpetrators. The Supreme Court in State of Kerala vs. Appu Balu said: "More than 75 per cent of the cases under the (SC/ST) Act are ending in acquittal at all levels."11 What is frightening is that the atrocities committed - murder, rape, mutilation, arson, etc. - are not only isolated acts but could even be acts of mass savagery committed by militia groups employed by the higher castes.12 The inability of the police and courts to deal with these crimes has had a backlash effect on young Dalits who also themselves have formed armed groups or Naxalites.
27. The present situation in India could not have been better expressed than in the words of the National Scheduled Caste and Scheduled Tribes Commission: "The task ahead is clearly, therefore, to focus on the basic needs and requirements of SCs/STs and give them the social dignity and the economic capability to come at par with other sections of the society and become part of the mainstream which had been the charter visualized by the Constitutional makers 50 years ago. Such a strategy would not only control the feeling of alienation, frustration and rising military and civil strife but would also make the SCs/STs active partners in nation building."
29. The exception is the caste of Rodiyas or Rodi (meaning "filth") from very early times. Many legends surround their origin, all agreeing that they were banished for a heinous crime and condemned to a life of begging or, more accurately, soliciting for alms. They were denied land and work and subjected to many disadvantages and degrading treatment. They were a despised lot; even in the middle of the nineteenth century they suffered "untouchability with a vengeance". They were always a small community of about 500 families living mainly in the central highlands in their own colonies of huts devoid of amenities.
30. During 150 years of British rule when caste distinctions were not officially recognized, there was a high degree of mobility from low caste groups to positions of social standing through entry into professions, business and politics. Desertions from traditional caste occupations were easily achieved through education, and caste became a status concept.15
31. In the case of the Rodi the process has been much slower. Through the efforts of the Backward Communities Development Board, Rodi children were able to attend village schools. Government land was given to them for cultivation. While official sympathy was shown to the Rodi the prejudices of villagers were not easily overcome; however, there is no evidence of any atrocities committed against the Rodi. Farming and casual labour have provided some opportunities but they have not been completely emancipated from the economic point of view: for many Rodi the old life outside the social system has continued.16
32. The caste system of the Tamils, who are mostly Hindus, is also occupation based. Tamils have high and low caste groups which show a stronger concept of pollution and social distance. At the bottom of the caste hierarchy are three castes of untouchables who suffer social disadvantage more than others. While Pallas and Nalavas (descendants of former slaves) can work on upper caste land for wages or rent garden land from them, Paraiyars engage mainly in so-called unclean work.
33. While the numerically powerful Vellala or farmer caste is not inclined to loosen its dominant position in society over all other castes, upward mobility could not be prevented after American missionary schools were established in the nineteenth century and education was opened to all without caste distinction.17 Descent is still important in Tamil society and prejudice is more openly shown. It is manifested publicly in acrimonious disputes over temple entry. Only a small number of temples are open to non-Vellala worshippers.
34. Recognizing that social disadvantages were imposed on people based on the accident of birth or the work they perform, the Prevention of Social Disabilities Act, 1957 was passed in 1957. The Act made it an offence for any person to discriminate against another on the ground of his caste in the matter of access to shops, public eating houses and hostels, public wells, hairdressing salons, laundries, cemeteries, places of worship, or for purposes of education and employment. In 1971 the Act was amended to strengthen its priorities and to impose heavier punishment. Initially there were some prosecutions in the North but there was a tendency for the police not to take action against violations. In a celebrated temple-entry case, the Act was challenged as interfering with customs and ancient usages that prohibited defilement of a Hindu temple by the entry of low-caste persons. This argument was rejected by the Supreme Court and Privy Council.18
35. The 1978 Constitution prohibits discrimination on the ground of caste (art. 12 (2)) and prohibits subjecting a person by reason of his caste to any disadvantage with regard to access to shops, public restaurants, etc. and places of public worship of his own religion. There are no affirmative action provisions as in India. Discrimination based on descent and work may not have disappeared, but there are no signs that it is a problem.
36. A recent allegation of discrimination based on descent is that made by Tamils of Indian origin employed mainly as tea estate workers in the hill country. With regard to wages, housing, sanitation, health and educational facilities, they were an oppressed group. Improvements have slowly been made as a result of government policies and powerful trade union action. Integration with the rest of society is more difficult owing to prejudice, but this is breaking down. There are signs of upward mobility through education and non-discriminatory laws. Caste distinctions exist among themselves and complaints have been made that workers (mostly Dalits) are kept out of trade union office by high caste supervisors. The citizenship laws enacted after independence rendered Indian Tamils, who numbered about 1 million, stateless, and they were denied voting rights. Subsequent laws based on agreements between the Governments of India and Sri Lanka have enabled them to acquire citizenship by registration without any distinction being made between them and others who are citizens by descent.
38. Untouchability was declared illegal in 1963 but the practice was not made punishable until the onset of multi-party democracy in 1990. The Constitution of 1990 guarantees the fundamental rights of the people and makes any discrimination against untouchables punishable by law. The National Code that prohibited Dalits from entering temples and religious sites was declared invalid by the Supreme Court in 1993. The Government is committed to implementing policies aimed at the advancement of Dalits. Thus, the "Independent Downtrodden and Oppressed Community Council" was formed in 1998 with the objective of coordinating policies and supervising programmes to benefit Dalits. The Ninth Five-Year Plan adopted several specific policies and programmes for the socio-economic development of the Dalits, including in education, health, sanitation, training and capability enhancement, and employment.
39. While these winds of change are appreciated, Dalits complain that untouchability has not been eliminated, that there is unequal distribution of resources, that many of them lack agricultural land and that they remain economically and socially depressed. The Government has acknowledged that "for an overwhelming majority of people the caste system continues to be an extremely salient feature of personal identity and social relationships and, to some extent, determines access to social opportunities".19 At the Asian Regional Preparatory Meeting for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Tehran in February 2000, the Government, whilst again admitting the problem of caste discrimination, declared that the issue should be addressed at the World Conference.
42. It is admitted that the living standard of Buraku people has improved, but discrimination in marriage and employment continues. Particularly hurtful is the use of derogatory terms in speech and writing. Also a matter of concern in the printing of lists of Buraku households with the names of the occupants, drawn up after private investigation and made available to big companies to prevent the employment of Burakumin. Government has enacted laws against such activities but the practice continues.22
44. In Sindh Province there are about 1.8 million persons living in bondage as agricultural workers, the majority of whom are Dalits originally from India. A large number of Dalit families work in the brick kiln industry, also under conditions of total bondage. Bonded families are virtual prisoners and not permitted to leave until the debt is paid. In 1992 the Bonded Labour (Abolition) Act was passed but observers note that even when the national police take action state prosecutors fail to file charges.
II. VIOLATIONS AGAINST WOMEN AND CHILDREN
46. Most girls and women in India's and Nepal's urban brothels are from lower caste, tribal or minority communities. The practice of devadasi involves the marriage or dedication of a pre-pubescent low-caste girl to a deity or temple. Once dedicated, the girls are unable to marry; their role is to serve as prostitutes to the higher caste men in the village. Some states in India have passed laws prohibiting the practice of dedication but they are reportedly not well enforced.
47. India has tried to remedy discrimination against women by adopting a constitutional amendment in 1993 that provided for one third of all panchyat, or village council, seats and village chief positions to be reserved for women and also reserved a percentage of those for women from the lowest rungs of the caste system. In Nepal the Constitution requires that 5 per cent of candidates put up by national parties be women, and in local government 5 per cent of the seats are reserved for women. It would appear, however, that Dalit women are not represented at the national or local level.
III. CONCLUDING REMARKS
49. The focus of this paper has been countries in Asia. At the time the resolution was discussed in the Sub-Commission it was mentioned the problem was not limited to Asia alone and that it existed in some parts of Africa and perhaps in South America. The author has not been able to include in this paper the situation in these other areas because of constraints of time and lack of access to relevant material.
50. This paper, which is introductory in nature, will hopefully demonstrate that there is a serious problem of human rights violations arising from work and descent. The many complaints of discrimination voiced at the United Nations General Assembly, the Human Rights Committee, CERD and the Sub-Commission itself merit further study, with the assistance of the Governments of the countries concerned.
Concluding observations of the Committee on the Elimination of Racial Discrimination: INDIA: 17/09/96. CERD/C/304/Add.13
2. The Committee ... regrets that the report and the delegation claim that the situation of the scheduled castes and scheduled tribes does not fall within the scope of the Convention.
14. Noting the declaration in paragraph 7 of the report, reiterated in the oral presentation, 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. It emphasizes its great concern that within the discussion of the report, there was no inclination on the side of the State party to reconsider its position.
23. 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 of 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 cafés or restaurants and that their children are sometimes separated from other children in schools, in violation of article 5 (f) of the Convention.
26. The Committee recommends that the State party continue and strengthen its efforts to improve the effectiveness of measures aimed at guaranteeing to all groups of the population, and especially to the members of the scheduled castes and scheduled tribes, the full enjoyment of their civil, cultural, economic, political and social rights, as mentioned in article 5 of the Convention. ...
31. The Committee recommends a continuing campaign to educate the Indian population on human rights, in line with the Constitution of India and with universal human rights instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination. This should be aimed at eliminating the institutionalized thinking of the high-caste and low-caste mentality.
Concluding observations of the Committee on the Elimination of Racial Discrimination: Nepal. 21/08/2000. A/55/18, paras.289-306. (Concluding Observations/Comments)
3. Factors and difficulties impeding the implementation of the Convention
In light of the multi-ethnic and multicultural society of the State party, the Committee notes that the existence of certain traditional customs, i.e. the caste system, and social attitudes are obstacles to efforts to combat discrimination
4. Concerns and recommendations
Concluding observations of the Committee on the Elimination of Racial Discrimination: Japan. 20/03/2001. CERD/C/58/Misc.17/Rev.3.
4. The Committee welcomes the legislative and administrative efforts made by the State party in order to promote the human rights and the economic, social and cultural development of some ethnic and national minorities, in particular the: i) 1997 Law for the promotion of Measures for Human Rights Protection; ii) 1997 Law for the Promotion of the Ainu Culture and for the Dissemination and Advocacy for the Traditions of the Ainu and the Ainu Culture; and iii) the series of Special Measures Laws for Dowa projects with the aim to eliminate discrimination against Burakumi.
7. While taking note of the State party's point of view on the problems involved in determining the ethnic composition of the population, the Committee finds that there is a lack of information on this point in its report. The State party is recommended to provide in its next report full details on the composition of the population as requested in the reporting guidelines of the Committee and, in particular, information on economic and social indicators reflecting the situation of all minorities covered by the scope of the Convention, including the Korean minority, Burakumin and Okinawa communities. The population on Okinawa seeks to be recognised as a specific ethnic group and claims that the existing situation on the island leads to acts of discrimination against it.
8. With regard to the interpretation of the definition of racial discrimination contained in article 1 of the Convention, the Committee considers, contrary to the State party, that the term "descent" has its own meaning and is not to be confused with race or ethnic or national origin. The Committee therefore recommends the State party to ensure the protection against discrimination and the full enjoyment of the civil, political, economic, social and cultural rights contained in article 5 of the Convention of all groups, including the Burakumi community.
23. The State party is also invited to provide in its next report further information on the impact of: (i) the 1997 Law for the promotion of Measures for Human Rights Protection and the work and powers of the Council for Human Rights Promotion; ii) 1997 Law for the Promotion of the Ainu Culture and for the Dissemination and Advocacy for their Traditions, and; iii) the Law Concerning Special Government Financial Measures for Regional Improvement Special Projects and envisaged strategies to eliminate discrimination against Burakumi after the law ceases to apply, i.e. in 2002.
Concluding observations of the Committee on the Elimination of Racial Discrimination: Bangladesh. 22/03/2001. CERD/C/58/Misc.26/Rev.3.
11. With regard to the interpretation of the definition of racial discrimination contained in article 1 of the Convention, the Committee considers that the term "descent" does not solely refer to race or ethnic or national origin and is of the view that the situation of castes falls within the scope of the Convention. The Committee therefore recommends the State party to include in its next report relevant information about the enjoyment of the rights contained in article 5 of the Convention by all groups, including castes.
V. REPLIES TO ALLEGATIONS TRANSMITTED TO GOVERNMENTS BY THE SPECIAL RAPPORTEUR
(B) INDIA: COMMUNICATION DATED 20 DECEMBER 1996 AND REMINDER DATED 18 AUGUST 1997
57. The Special Rapporteur was informed of the situation of the untouchables in India in communications from three organizations, namely, the Ambedkar Centre for Justice and Peace, the World Council of Churches and the Dalit Liberation Education Trust (E/CN.4/1997/71). He communicated these allegations to the Indian authorities, which replied to him on 30 September 1997.
Reply from the Indian Government
58. In substance, the Indian Government rejects the allegations that it tolerated untouchability and closed its eyes to the human rights violations of protected castes. The reply contains a list of the measures taken in this regard with a view to curbing discrimination between castes and maintains that a practice that is so old cannot be eliminated rapidly.
Special Rapporteur's observations
59. In view of the discrepancy between the facts alleged and the reply of the Indian Government, the Special Rapporteur would like to visit India in order personally to evaluate the actual situation in cooperation with the Government and the communities concerned. The country's authorities will be contacted with a view to arranging this mission.
Report by Mr. Glélé-Ahanhanzo, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, submitted pursuant to Commission on Human Rights resolution 1998/26. E/CN.4/1999/15. 15 January 1999.
III. CONTEMPORARY MANIFESTATIONS OF RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE 74 - 100
F. The question of the untouchables in India
88. In 1996 the Special Rapporteur's attention was drawn to the situation of the Dalits or untouchables in India (E/CN.4/1997/71, para. 127). Given the complexity of the question, the Special Rapporteur consulted the Indian Government, undertook documentary research and studied the position of the Committee on the Elimination of Racial Discrimination on the question. The basic question was whether the age-old caste system in India, which had produced several million untouchables, could be regarded as racial discrimination.
89. In its appearances before the Committee on the Elimination of Racial Discrimination and its communications to the Special Rapporteur, the Indian Government has consistently held that the caste system is not a hierarchical system based on race. The following five paragraphs, which are taken from the Indian Government's communication of 30 September 1997, illustrate this position.
90. History has made India home to people of diverse origins. Over the millennia, the assimilative character of the Indian civilization combined with the process of intermingling of inhabitants after waves of immigration has resulted in a composite society. A variety of racial sources have therefore contributed to the "mix" that is the hallmark of the Indian people today. The fusion of these diverse racial elements over centuries has meant that Indian society is neither racially nor ethnically homogenous. Categorical distinctions of "race" or "national or ethnic origin" have ceased to exist and race itself as an issue does not impinge on the consciousness or outlook of Indian citizens in their social relations. Today India is a mosaic of different groups who seek identification in terms of language, religion, caste or even regional characteristics, rather than race, colour or ethnic origin.
91. The term "caste" denotes a "social" and "class" distinction and is not based on race. It has its origins in the functional division of Indian society during ancient times. A hierarchical arrangement is the principal characteristic of this social institution in which certain privileges or disabilities are enjoined on its members from birth and are not supposed to change during a person's lifetime. Each caste group is functionally dependent on the other caste groups and has a well-defined role in a social set-up based on a symbolic relationship between persons belonging to different castes. Racial hierarchy appears as an aberrant adjunct to the main structure of society, while the multi-segmented and intricately ranked social grouping of castes has been the central principle of a functional organization of Hindu society. Further, there is ample evidence of persons belonging to different castes having the same racial characteristics.
92. Communities which fall under the category of "Scheduled Castes" are unique to Indian society and its historical process. They comprise persons who were excluded from the caste system and subjected to severe discrimination in ancient India. These persons were treated as "untouchables" and social and physical contact with them was shunned by the dominant castes.
93. The first enumeration of the former "untouchable" communities was carried out during a census in 1931 under British rule. Based on the definition evolved for the purpose at that time and reports of several commissions and committees since independence, the criterion generally followed for the specification of communities as Scheduled Castes has been "extreme social, educational and economic backwardness arising out of the traditional practice of untouchability".
94. "Race" has thus never been a factor in the process of identification and determination of the communities which constitute Scheduled Castes. Persons who belong to the Scheduled Caste communities are today considered different from others because of their social, economic and educational backwardness, not because they belong to a separate "race".
95. The Indian Government also indicates that constitutional, legislative and institutional measures have been taken to prohibit discrimination based on membership in a caste with regard to access to public places and provision of goods and services and to abolish untouchability (Constitution, arts. 15 and 17). The Constitution also guarantees equality before the law (art. 14) and equal opportunity of access to public employment, although the State is permitted to (a) make reservations concerning appointments or posts in favour of any backward class of citizens and (b) institute reservations in matters of promotion for Scheduled Castes and Tribes (art. 16).
96. A National Commission on Scheduled Castes and Scheduled Tribes was also established, one of its goals being: (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under the Constitution or under any other law; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes; (c) to participate in and advise on the planning process of socio-economic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any state.
97. According to the 1991 census, 138.2 million persons belonged to the Scheduled Castes (16.48 per cent of the estimated population of 846.3 million at the time) and 67.8 million to the Scheduled Tribes (0.08 per cent of the population).
98. The organizations representing the untouchables or Dalits recognize the progress achieved on their behalf since India's independence, but point out that the group's situation continues to be difficult. According to these organizations, while the average literacy rates in India (for men and women, respectively) were 63.8 per cent and 39.42 per cent in 1992, among Dalits the averages were only 29.7 per cent and 18.05 per cent). / Thiagara, Henry. The Indian Socio-Economic Pyramid, Dalit Liberation Education Trust./ There are currently about 115 million Dalit child labourers, 20 million of whom work under dangerous conditions. Additionally, in 1996 more than 1,200 Dalit children died from malnutrition in Maharashtra state. / Varhade, Yogesh. Statement made to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Working Group on Indigenous Populations, fifteenth session, 28 July-1 August 1997, Ambedkar Center for Justice and Peace./ According to several sources, the Dalits are most often the victims of forced relocation, arbitrary detention and summary execution in India. The Dalit Liberation Education Trust asserts that, "every hour two Dalits are assaulted, every day three Dalit women are raped, two Dalits are murdered, two Dalit houses are burnt in India". / Dalit Liberation Education Trust. Statement to the Working Group on Minorities of the Commission on Human Rights, 26-30 May 1997./
99. In the rural areas especially, the practice of untouchability is said to be very much alive and is reflected in segregated housing, with the Dalits forced to live at least 1/2 km from the rest of the villagers, and in the prohibition for them to use the wells, the shared water source. Segregation also reportedly exists in the schools, public services and public places (shops, hairdressers and public transport; in restaurants, dishes used by Dalits are sometimes separated from those used by the higher castes).
100. Given, on the one hand, the above-mentioned information, particularly as it relates to the constitutional provision cited by the Indian Government in its communication of 30 September 1997 - "Under article 366, the Scheduled Castes are defined as `castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of the Constitution'" - and given, on the other hand, the fact that the Committee on the Elimination of Racial Discrimination, in its concluding observations on India's periodic reports, stated, "the situation of the scheduled castes and scheduled tribes falls within the scope of the Convention on the Elimination of Racial Discrimination" (CERD/C/304/Add.13, para. 14), the Special Rapporteur believes that specific attention should be given to the situation of the untouchables in India; a field mission might be envisaged for that purpose, with the agreement of the Indian Government.
Concluding observations of the Human Rights Committee: INDIA. 04/08/97. CCPR/C/79/Add.81
5. ... The persistence of traditional practices and customs, leading to ... discrimination against members of the underprivileged classes and castes and other minorities ... constitute impediments to the implementation of the Covenant.
8. The Committee also welcomes the establishment of the National Commission for Scheduled Castes and Scheduled Tribes and the National Commission for Women in 1992, and the National Commission for Minorities in 1993. These commissions have initiated some improvements, in particular in the levels of education and in the representation of the various groups concerned within elected bodies and other authorities.
10. The Committee has noted that positions in elected bodies are reserved for members of scheduled castes and tribes ....
15. The Committee notes with concern that, despite measures taken by the Government, members of scheduled castes and scheduled tribes, as well as the so-called backward classes and ethnic and national minorities 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. While the Committee notes the efforts made by the State party to eradicate discrimination:
it recommends 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.
Concluding Observations of the Committee on the Elimination of Discrimination Against Women: INDIA. 01/02/2000. A/55/38, paras.30-90
52. The Committee considers that ... such social practices as the caste system ... present major obstacles to the implementation of the Convention.
68. ... Discrimination against women who belong to particular castes or ethnic or religious groups is also manifest in extreme forms of physical and sexual violence and harassment.
69. The Committee urges the Government to implement existing legislation prohibiting such practices as ... caste-based discrimination. ...
74. The Committee is concerned 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.
75. The Committee urges the Government to enforce laws preventing discrimination against Dalit women and prohibiting the devadasi system. It urges the Government to introduce affirmative action programmes in such areas as education, employment and health so as to provide life chances to Dalit women and girls and create an environment conducive to their progress. ...
Concluding Observations of the Committee on the Rights of the Child: INDIA: 23/02/2000. CRC/C/15/Add.115
9. Given such a diverse and multicultural society, the Committee further notes that the existence of traditional customs (i.e. the caste system), and societal attitudes (e.g. towards tribal groups) is an obstacle to efforts to combat discrimination, and compounds, inter alia, poverty, illiteracy, child labour, child sexual exploitation, and children living and/or working on the streets.
12. The Committee notes that insufficient efforts have been made to implement legislation and decisions of the courts and the commissions (i.e. the National Human Rights Commission, the National Commission for Women, and the Scheduled Castes and Scheduled Tribes Commission); and to facilitate the work of such institutions with respect to children's rights.
30. In the light of article 2 of the Convention, the Committee is concerned at the existence of caste-based discrimination and discrimination against tribal groups, despite these practices being prohibited under the law.
31. In accordance with article 17 of the Constitution and article 2 of the Convention, the Committee recommends that the State party take steps to ensure states abolish the discriminatory practice of "untouchability", prevent caste- and tribe-motivated abuse, and prosecute State and private actors who are responsible for such practices or abuses. Moreover, in compliance with article 46 of the Constitution, the State party is encouraged to implement, inter alia, affirmative measures to advance and protect these groups. The Committee recommends the full implementation of the 1989 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the 1995 Scheduled Castes and Scheduled Tribes Rules (Prevention of Atrocities) and the 1993 Employment of Manual Scavengers Act. The Committee encourages the State party to continue its efforts to carry out comprehensive public education campaigns to prevent and combat caste-based discrimination. In line with the Committee on the Elimination of Racial Discrimination (CERD/C/304/Add.13), the Committee stresses the importance of the equal enjoyment by members of these groups of the rights in the Convention, including access to health care, education, work, and public places and services, such as wells.
56. ... There is serious concern regarding the striking disparities in terms of access to education, attendance at primary and secondary levels and drop-out rates between: different states, rural and urban areas, boys and girls, the affluent and poor, and children belonging to scheduled castes and tribes. ...
Fourteenth report of States parties due in 1998: Nepal. 12/05/99. CERD/C/337/Add.4. (State Party Report)
F. Caste and ethnicity
20. The people of Nepal are socially segmented along lines of caste and sub-caste and ethnic and sub-ethnic groups. According to the 1991 census, there are more than 60 such groups, along with 20 major language groups. Many groups are endogamous, perform distinct rites de passage and maintain various types and degrees of commensal and other forms of group exclusiveness.
21. The caste system was recreated/defined in the time of the late King Jayasthiti Malla. He mentioned four main castes, Brahmin, Chhetri, Vaishya and Shudra, and 16 sub-castes in each main caste. Further, he divided the castes on the basis of the division of labour in the country. The caste system was primarily hierarchical. Brahmin was identified as the highest caste and Shudra was the lowest. He described the system in his book, Human Behavioural Science, in the 1930s. Since then, members of the Shudra were identified as untouchable; they could not enter the houses of higher caste people and water touched by them was considered impure by the upper castes. The Brahmins had the most power; their duties were to guide, direct and create awareness of social values in society, perform ritual activities, etc. Punishments for the same crime were also different according to whether it was committed by a Brahmin, a woman or a person belonging to a lower caste. Deep social rifts and distance separated the high caste groups from those caste groups regarded as untouchables.
22. Racial discrimination in Nepal was legally abolished by the enactment of the National Code, 1963 (Muluki Ain), but it persists in rural areas. For an overwhelming majority of people, the caste system continues to be an extremely salient feature of personal identity and social relationships and, to some extent, determines access to social opportunities. Therefore, the human development indicators for occupational castes (so-called lower castes) are lower than for other castes. The caste system is weakening considerably in urban areas, workplaces and areas of high migration. There are also instances of a household or an individual having gone up in caste, even in the rural, indigenous areas, on account of the acquisition of wealth/income, learning or the adoption of particular modes of life.
G. Social development trends
25. There has been a significant improvement in the education sector over the years. The adult literacy rate has increased from 24 per cent in 1981 to 40 per cent in 1996. The lowest literacy is among the occupational castes. Women constitute more than two thirds of the illiterates. The net enrolment ratios are 70 per cent for the primary level, 45 per cent for the lower secondary level and 36 per cent for the secondary level. However, Nepal still lags far behind in general, technical and vocational education.
A. Article 2
27. That all citizens have equal rights is a principle of the Constitution of the Kingdom of Nepal, 1991 and all branches of government are devoted to giving it concrete form. Article 11 of the Constitution stipulates that all citizens are equal before the law and entitled to the equal protection of the law in accordance with the International Convention on the Elimination of All Forms of Racial Discrimination. Article 11 (2) of the Constitution states that there shall be no discrimination in the application of general law on grounds of religion, race, sex, caste, tribe, ideological conviction or any of these. However, special legal provisions may be made for the protection and advancement of the interests of women, children, the aged, or those who are physically or mentally disabled or those who belong to a class which is economically, socially or educationally backward. Similarly, article 11 (4) provides that no person shall, on the basis of caste, be discriminated against as untouchable, be denied access to any public place, or be deprived of the use of public utilities. Any contravention of this provision is to be made punishable by law.
28. The Muluki Ain (hereinafter referred to as National Code) has prohibited any sort of discrimination on the basis of caste, any denial of access to public places or public utilities, and provides for a punishment of one year's imprisonment or a find of 3,000 rupees or both for violators of this provision.
29. Section 3 of the Civil Liberties Act (Nagarik Adhikar Ain), 1954 deals with equality before the law and equal protection of the law; section 4 prohibits any restrictions against any citizen on the basis of religion, race, sex, caste, or any of these in appointment to the civil service. The Act has provided for positive discrimination in favour of the socially or culturally backward ethnic groups.
Efforts to promote the welfare and development of backward communities
40. .... In fiscal year 1997/98, the Ministry of Women and Social Welfare has provided financial assistance for socially disadvantaged communities/castes (Badi, Mushar, Ghanghar, Dome, Dushar, Raute, Satar, Dhimal, Chhamar, Damai, Kami, Sharki, Tharu, Sunuwar, Khatwe and Kumal) to promote their traditional technology. However, programmes to raise the status of repressed people and backward communities were not addresssed in national policies and programmes in an integrated way.
55. As mentioned above, no discrimination exists in Nepal, either in terms of legal provisions or of policy and programme measures. The National Code prohibits any sort of discrimination on the basis of caste, any denial of access to public places and public utilities, and provides for the punishment of violators of this provision. The Civil Liberties Act, 1954 prohibits any restrictions against any citizen on the basis of religion, race, sex, caste, or any of these in appointments to the civil service and the Constitution stipulates that all citizens are equal before the law.
64. The Constitution guarantees civil rights. All citizens have equal rights before the law and have the following freedoms:
(a) Freedom of opinion and expression;
65. These freedoms may be exercised with the following provisos:
66. Every person shall have the freedom to profess and practise his/her own religion as handed down to him/her from his/her forefathers and every religious denomination shall have the right to maintain its independent existence and for this purpose to manage and protect its religious places and trusts (article 19 of the Constitution).
Right to marriage and choice of spouse
67. The legal age for marriage without parental consent is 21 years for males and 18 years for females whereas with parental consent the marriage age is 18 years for males and 16 years for females. The free will of the prospective spouses is given due importance; however, in some cases, prospective spouses might face social obstructions if the man and woman come from different social standings/castes/ethnic groups.
68. According to the prevailing laws, a man and woman who have attained the marriageable age may register their marriage at the District Administration Office and are given a Certificate of Registration of Marriage duly signed by the concerned authorities.
2. Economic, social and cultural rights
69. Article 17 of the Constitution states that all citizens have the right to property subject to existing laws which cover the right to acquire, own, sell and dispose of such property.
70. To develop a healthy social life by eliminating all types of economic and social inequalities and establishing harmony amongst the various castes, tribes, religions, languages, races and communities is the social objective of the State. The State is also directed to pursue a policy of mobilizing the natural resources and heritage of the country in a manner useful and beneficial to the interests of the nation. Article 25 of the Constitution envisages the principal objective of the State as to promote conditions of welfare on the basis of the principles of an open society by establishing a just system in all aspects of the national life, including social, economic and political life, while at the same time protecting the life, liberty and property of the people. The State's fundamental economic objective is to transform the national economy into an independent system by preventing the country's available resources and means from being concentrated within a limited section of society, and by making arrangements for an equitable distribution of economic gains on the basis of social justice.
101. The equality of rights of citizens is a principle of the Constitution. All branches of current legislation are devoted to giving it a concrete form. Article 11 of the Constitution stipulates the equality of all citizens before the law and equal protection of the law as stipulated in the International Convention on the Elimination of All Forms of Racial Discrimination. Article 11 (2) of the Constitution states that there shall be no discrimination against any citizen in the application of general law on ground of religion, race, sex, caste, tribe or ideological conviction or any of these. However, special legal provisions may be made for the protection and advancement of the interests of women, children, the aged, those who are physically or mentally disabled or those who belong to a class which is economically, socially or educationally backward.
· "Occupational castes" mostly indicate the so-called "Untouchables" of the Hills and Tarai (Plains part of the country).
Initial reports of States parties due in 1992: Burkina Faso. 15/07/93. CRC/C/3/Add.19. (State Party Report) Committee on the Rights of the Child
14. Article 1 of the Constitution stipulates: "All inhabitants of Burkina Faso are born free and equal before the law". Discrimination of any kind, in particular discrimination based on race, ethnic group, religion, colour, sex, language, caste, political opinion, property or birth, is prohibited.
85. Legislation in Burkina Faso prohibits all discrimination based on race, ethnic group, region, colour, sex, language, religion, caste, political opinion, wealth and birth (Constitution, art. 1). Children belonging to a minority or an indigenous group enjoy the same rights as all citizens of Burkina Faso and all foreigners.
8. The provisions of the Constitution recognize and protect civil, political and economic rights:
Article 1, paragraph 3: "Discrimination of any kind, particularly based on race, ethnicity, region, colour, sex, language, religion, caste, political opinion, wealth and birth, is prohibited."
12. Any discrimination in marriage based on race, colour, religion, ethnicity, caste, social origin or wealth is prohibited; strict equality exists between the spouses. Opposition to marriage on grounds of race, caste, colour or religion is prohibited. The Personal and Family Code currently in force in Burkina Faso seeks to modernize and standardize the marriage regime by eliminating all forms of discriminatory marriage, particularly forced marriage, the betrothal of young girls and levirate ("formal" marriage with the widow of one's brother).
Concluding Observations of the Committee on the Elimination of Racial Discrimination: Burkina Faso. 21/08/97. CERD/C/304/Add.41. (Concluding Observations/Comments)
C. Positive aspects
6. It is noted with appreciation that the prohibition of discrimination on any ground, in particular of race, ethnic origin, colour, religion or caste, is contained in the Constitution, which makes it an excellent basis for the implementation of the Convention in Burkina Faso.
Summary record of the 1236th meeting: Bosnia and Herzegovina, Burkina Faso, Israel, Poland. 05/12/97. CERD/C/SR.1236. (Summary Record) Committee on the Elimination of Racial Discrimination
Mr. DIACONU (Country Rapporteur on Burkina Faso)
List of Issues: Cameroon. 17/12/98. E/C.12/Q/CAMER/1. (List of Issues) Committee on Economic, Social and Cultural Rights
Article 6. The right to work
11. What measures, legislative or otherwise, has the State Party adopted to ensure that the right to work is provided to all in Cameroon without any discrimination as to colour, sex, caste, ethnic group, creed and social or economic status?
Summary record of the 571st meeting: Mali. 05/10/99. CRC/C/SR.571. (Summary Record) Committee on the Rights of the Child
Mrs. DIARRA THIERO (Mali)
19. Mr. BALLO (Mali) said he was unaware of any problems posed by the caste system in Mali, which was a domestic tradition rather than a form of discrimination. Each person had a job to do and that job was determined by marriage and family relationships. While there was no legal discrimination, other practices were also part of the caste tradition, which could not be legislated against.
39. Mrs. OUEDRAOGO agreed with the delegation's comments on the role of parents in supervising children's access to films and television programmes, which was particularly important in connection with the private video showings which often took place in villages throughout the subregion. Regarding excision, she agreed that a law would be premature in the context described by the delegation, but welcomed the Government's political will to combat that practice. She noted that there did not appear to be a problem of discrimination against castes in Mali. Regarding violence, she had been pleased to hear that police officers and gendarmes received training relating to the Convention, and asked whether there were plans to institute such training in police and gendarmerie training schools.
Summary record of the 570th meeting: Mali. 09/11/99. CRC/C/SR.570. (Summary Record) Committee on the Rights of the Child
Summary record of the 1341st meeting: Mauritania. 12/08/99. CERD/C/SR.1341. (Summary Record) Committee on the Elimination of Racial Discrimination
Mr. OULD MERZOUG (Mauritania)
Initial report: Mauritius. 14/10/94. E/1990/5/Add.21. (State Party Report) Implementation of the International Covenant on Economic, Social and Cultural Rights
48. Promotion in the public service is a matter for the Public Service Commission (PSC), which is a constitutional body under the Constitution operating within the parameters laid down in its regulations (PSC Regulations). The regulations which are made by the PSC under the Constitution ensure that appointment or promotion in the public service are made within the spirit of the Constitution, i.e. there is no discrimination in regard to sex, race, caste, place of origin, political opinions, colour or creed. Of course, in certain specific areas the requirements are restricted to either male or female candidates, depending on the nature of the duties required. For example in a girls college, the need will be for a female matron.
357. The Constitution of the Republic of Mauritius guarantees the right of every Mauritian citizen to take part in the cultural life which he or she considers pertinent and to manifest his or her own culture. In fact, chapter II of the Constitution of the Republic of Mauritius provides for the protection of the fundamental rights and freedom of the Mauritian citizen, namely:
Protection of freedom of conscience, of thought, religion and freedom to manifest and propagate his religion or belief in worship, teaching, practice and observance;
Initial reports of States parties due in 1994: Mauritius. 07/03/95. CAT/C/24/Add.3. (State Party Report) Committee Against Torture
33. Section 7 (5) provides that an offender shall not be surrendered to a foreign State where the Minister has reasonable grounds for believing that:
Initial report of States Parties due in 1992: Mauritius. 02/10/95. CRC/C/3/Add.36. (State Party Report) Committee on the Rights of the Child
19. With respect to fundamental rights and freedoms, all Mauritian citizens are equal before the law. Discrimination based on religion, ethnicity, colour, caste, political opinion, disabilities, etc. is not permitted. A law to remove discrimination on the basis of sex will soon go to Parliament. The problem of discrimination is dealt with in section 16 of chapter 2 of the Constitution. Moreover, the Mauritian Constitution recognizes the best interest of the child as the primary guiding principle in family matters. All legislation is enacted in the best interest of the child.
Third periodic reports of States parties due in 1990: Mauritius. 15/10/95. CCPR/C/64/Add.12. (State Party Report) Human Rights Committee
Advocacy of national, racial or religious hatred
(1) Any person who, with intent to stir up contempt or hatred against any section of the public distinguished by race, caste, place of origin, political opinions, colour or creed -
(a) publishes or distributes any writing which is threatening, abusive or insulting;
Summary record of the 40th meeting: Mauritius. 30/11/95. E/C.12/1995/SR.40. (Summary Record) Committee on Economic, Social and Cultural Rights
Mr. BOOLELL (Mauritius)
29. Mr. SIMMA asked whether section 16 (4) (c) of the Constitution could be construed as meaning that if, in the future, owing to some fundamentalist pressure, a Muslim, Hindu or other law discriminating against women for religious reasons was enacted, it would be acceptable.
Summary record of the 1476th meeting: Mauritius. 28/03/96. CCPR/C/SR.1476. (Summary Record) Human Rights Committee
42. Mr. BÁN observed that Mauritius had clearly made considerable strides in the field of human rights since the previous report: the Constitution had been amended in substantial points, the death penalty had been abolished and a series of anti-discrimination laws had been adopted. He wondered in that connection whether the amendment of section 16 of the Constitution would now set aside section 242 of the Criminal Code, which did not provide for equal treatment of men and women. Also, he would like an explanation of the terms "race, caste, place of origin", as they were used in section 16 of the Constitution.
Summary record of the 1477th meeting: Mauritius. 08/04/96. CCPR/C/SR.1477. (Summary Record) Human Rights Committee
Mr. SEETHULSINGH (Mauritius)
Concluding observations of the Committee on the Elimination of Racial Discrimination: Mauritius. 27/09/96. CERD/C/304/Add.19. (Concluding Observations/Comments)
10. With regard to article 2 of the Convention, the adoption in July 1991 of section 282 of the Criminal Code, which makes it an offence to publish or distribute any threatening, abusive or insulting writings, to use in public any threatening, abusive or insulting gestures or to broadcast threatening, abusive or insulting matter, with intent to stir up contempt or hatred against any part of the population distinguished by race, caste, place of birth, colour or creed, is noted with appreciation.
Twelfth periodic report of States parties due in 1995: Mauritius. 03/01/96. CERD/C/280/Add.2. (State Party Report) Committee on the Elimination of Racial Discrimination
10. Under section 3 of the Constitution it is specifically provided that all citizens shall have access to human rights and fundamental freedoms without discrimination by reason of race, place of origin, political opinion, colour, creed or sex. This provision is further reinforced by section 16 which provides that no law shall be discriminatory on the ground of race, caste, place of origin, colour, creed or sex.
23. In the framework of its continuing policy aimed at the elimination of all forms of discrimination, the Government in July 1991 enacted section 282 of the Criminal Code (annex 4) to make it an offence for any person who with intent to stir up contempt or hatred against any section or part of any section of the public distinguished by race, caste, place of origin, colour or creed:
A conference in preparation for the UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance
The Global Conference Against Racism and Caste-based Discrimination was convened in New Delhi, 1-4 March 2001, and included representatives and victims from India, Nepal, Bangladesh, Pakistan, South Africa, Japan, Sri Lanka, the Netherlands, Denmark, Germany, Hong Kong SAR, the United Kingdom, and the United States.
The participants of the Global Conference strongly condemn caste (occupation and descent based) discrimination and the practice of untouchability, which is the source of immense human suffering and the cause of gross human rights violations and of dehumanizing and degrading treatment of 240 million people.
1. Taking note of the concluding observation of the United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD) "that the situation of scheduled castes and scheduled tribes falls within the scope of the Convention on the Elimination of All Forms of Racial Discrimination," and that the term "descent" contained in Article 1 of the Convention does not refer solely to race, and encompasses the situation of scheduled castes and scheduled tribes, as cited on September 17, 1996, in the document CERD/C/304/Add.13,
2. Affirming that caste as a basis for the segregation and oppression of peoples in terms of their descent and occupation is a form of apartheid and a distinct form of racism affecting victims equally irrespective of religion.
3. Asserting that Untouchability is a Crime against Humanity,141
4. Recognizing that caste-based practices - distinction, exclusion and restrictions on social and occupational mobility - which lead to a negation of humanity and the inability to exercise all human rights are affecting at least 240 million persons in South Asia and millions of others in East Asia and West Africa,
5. Recognizing that the 52nd United Nations Sub-Commission on Human Rights, given their concerns over caste-based discrimination, passed a unanimous resolution calling for a working paper on occupation- and descent-based discrimination,
6. Recalling conclusions drawn by the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Committee on the Rights of the Child (CRC), the United Nations Special Rapporteur on racism, racial discrimination, xenophobia and related intolerance and the Human Rights Committee that Dalit men, women and children endure severe forms of discrimination, violence and exploitation because of their caste status,
7. Committed to the inclusion of caste-based discrimination on the agenda, the declaration and the programme of action of the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Forms of Intolerance (WCAR), to be held at Durban, South Africa, from August 31-September 8, 2001,
8. Calling attention to the proceedings of the Bellagio Consultation, the European NGO preparatory meeting, and the Asian and African expert meetings in preparation for the WCAR which specifically address the problem of caste discrimination,
9. Encouraged by the solidarity expressed by non-governmental organizations in the WCAR preparatory and expert meetings and taking note of the consensus reached in the Asia-Pacific NGO Declaration in Tehran for inclusion of caste-based discrimination in the agenda of the WCAR and the Declaration and Programme of Action,
10. Taking note of governments' obligations to uphold universal standards of human rights under the UN treaties and covenants,
11. Commending those governments that are supporting the inclusion of discrimination based on caste on the agenda of the WCAR,
12. Noting that many countries have recognized that certain communities, such as Dalit peoples in India, Nepal, Pakistan, Sri Lanka, and Bangladesh, Buraku people in Japan, and other communities in Senegal, South Mauritania and other countries, face caste-based discrimination,
13. Recognizing that governments have undertaken constitutional, legislative, and policy initiatives, as well as set up administrative bodies to combat discrimination based on caste and race, but also that, due to lack of political will, these efforts have been insufficient and are being diluted, subverted, and not properly implemented,
14. Noting that women - especially Dalit women - represent the most oppressed sections of all societies, and that they face multiple forms of discrimination, including caste-based, religious and patriarchal ideology and practices;
15. Taking note of the support of some public leaders, the media, non-governmental organizations, and concerned citizens from various walks of life who have condemned the existence and perpetuation of caste-based discrimination,
16. Strongly condemning the attempts of the government of India to oppose the inclusion of caste-based discrimination in the agenda of the WCAR, and urging other governments to support the inclusion of caste-based discrimination in the WCAR agenda, 142
17. Denouncing governments - particularly India- that refuse to comply with or recognize their legal obligations as defined by the CERD,143
The participants of the Global Conference adopt the following:
PROGRAMME OF ACTION
I. Measures at the national level
1. Enforce and implement an effective and time-bound program to abolish untouchability and similar practices in all spheres.
2. Enact and enforce laws related to compulsory primary education and the elimination of child labor, bonded labor, manual scavenging, caste-bound free labor, the devadasi system or temple prostitution, and other similar practices.
3. Ensure that all necessary constitutional, legislative, and administrative measures, including appropriate forms of affirmative action, are in place to prohibit and redress discrimination on the basis of caste, and that such measures - including those in Japan and India - are continued until discrimination is eliminated.
4. Monitor and publicize the extent to which existing laws have been implemented.
5. Monitor and analyze educational syllabi and textbooks that perpetrate caste-based oppressions and exclusion, and glorify worldviews that have contributed to the continued existence of a system of "hidden apartheid." Implement alternatives that emphasize human rights education at the school and university levels.
6. Allocate adequate funds for and effectively implement programs for the socio-economic empowerment of communities discriminated against on the basis of caste or descent.
7. Ensure full proportional representation based on percentage of national population size of Dalits, Buraku, and other groups excluded on the basis of caste in all sections of society including police, judiciary, public service, media, and private industry.
8. Urge statutory and constitutional bodies such as national human rights commissions, commissions on women, race, minorities, and other relevant groups, as well as the Asia-Pacific Coordinating Committee of National Institutions, the African Coordinating Committee of National Institutions, and the International Coordinating of National Institutions, to take up the issue of caste-based discrimination and to support its inclusion in the WCAR.
9. Urge national and state governments to take all measures to combat caste-based discrimination against women.
10. Urge governments not to deny passports to people wishing to attend the WCAR in Durban, particularly Dalit activists.
11. Demand that the WCAR agenda specifically address caste-based discrimination and that the WCAR Platform for Action identifies concrete measures for ending this form of discrimination;
12. Demand that the caste system be included in the WCAR documents as a major source of discrimination.
13. Call upon the WCAR to underline the necessity for States to adopt immediate concrete measures to eradicate the widespread discrimination and persecution targeting Dalits, Burakumin, and other communities facing discrimination on the basis of caste or descent.
14. Call upon CERD and the Special Rapporteur on Racism, Racial Discrimination, Xenophobia, and Related Forms of Intolerance to reaffirm their position that caste-based discrimination comes under the purview of the CERD and to state that caste should be addressed in the WCAR.
15. Call for a declaration by the United Nations that untouchability constitutes a crime against humanity.
16. Call for intensified efforts at educating the public about the extent of caste discrimination and about the contributions of Dalit culture and history.
17. Urge the appointment of a United Nations Special Rapporteur on caste discrimination.
18. Declare April 14 (Dr. B. R. Ambedkar's birthday) as the International Day of Dalit Solidarity.
19. Recommend that United Nations development agencies pay particular attention to caste violence and caste discrimination, assess the impact of their existing programs with regard to caste, and develop programs and strategies designed to curb abuse and encourage accountability.
ii. Reaffirming that all human rights are universal, indivisible, interdependent and inalienable, irrespective of distinction of any kind such as race, class, colour, sex, gender, language, national or ethnic identity, caste, descent, occupation, `untouchability' religion, social origin, disability, sexual orientation, diverse gender identities, age and other factors,
iii. Recognising that all human beings are born free and equal in dignity and rights, and have the capacity to contribute constructively to the development and well-being of their societies and, that all human societies, including those of the Asia Pacific region, are based on the shared values of tolerance, solidarity and pluralism,
iv. Noting with concern, the persistence and increasing spread of various forms of racism, racial and ethnic discrimination, xenophobia and related intolerance in all continents and regions of the world,
v. Declare that racism is an ideological construct that assigns a certain social group to a position of power over others on the basis of a notion of superiority, dominance and purity. It is `scientifically false, morally condemnable, socially unjust and dangerous' and politically harmful;
vi. Further declare that racism is the basis of gross violations of human rights and occurs in the form of unjust exploitation, it renders people stateless, creates refugees, leads to marginalisation, exclusion, pauperisation, militarism, ethnic cleansing, cultural annihilation and genocide, suppression and destruction of indigenous cultures, constitutes a threat to peace and development of all human societies and, therefore, must be addressed with all appropriate resources and means, including legal mechanisms;
vii. Consider that the roots of many contemporary manifestations of racism and racial discrimination can be located in the legacy of colonialism which created historical injustices based on ideologies of superiority, dominance and purity;
viii. Recall that some of the worst manifestations of racism and racial discrimination have been caused by colonialism, foreign domination and militarisation and express grave concern regarding the continued occupation of Palestine;
ix. Call on the forthcoming World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerances to specifically mention within it's scope and ambit new manifestations of racism and racial discrimination including growing tendencies of religious intolerance and caste-based discrimination as evidenced in different parts of the world and include the same as a manifestation of xenophobic and racist tendencies.
Caste and Racism
41.Caste is descent and occupation based and hereditary in nature, determined by one's birth into a particular caste. Caste and descent-based discrimination affects nearly 240 million people in the Asia Pacific region, for example Dalits in India and Nepal and Burakamin in Japan, irrespective of the faith that they practice.
42."Untouchability" (the subjugation and denial of the basic human rights of people labelled as "polluted" or "impure") is the most insidious manifestation of caste-based discrimination in the Asia Pacific region, specifically in India, Sri Lanka, Bangladesh, Pakistan and Nepal. Caste-based discrimination de facto denies access to public services including housing, education, health, land, employment, social services and other resources normally available to citizens of a country as a right. We assert that Untouchability is a Crime Against Humanity.
43.The grave lack of legal protection in some countries for persons who suffer caste-based discrimination places restrictions on their enjoyment of rights as well as on their social and economic mobility and makes them more vulnerable to all forms of violence.
44.Even though states enact laws to protect the rights of marginalized communities, it is the states themselves who often violate these laws;
45.Caste as a basis for the segregation and oppression of peoples in terms of their descent and occupation is a form of apartheid and in its practical manifestation and nature of discrimination is a distinct form of racism affecting victims equally irrespective of religion. Casteism pre-dates racism and is a distinct form of racism.
46.The apartheid nature of caste discrimination manifests itself in the segregation of housing settlements and cemeteries, denial of access to common drinking water, restaurants, temples, tea stalls (`two-cup' system), restrictions on marriage and other insidious measures designed to prevent social interaction and mobility.
47.Any attempt made by members of these communities to struggle for equal rights is met with extreme violence such as the burning of homes, stripping and parading, mainly of women, rape, murder and social and economic boycott. The perpetrators of these crimes frequently enjoy police impunity, while the victims, who are mostly women, are often falsely accused and imprisoned.
48.There is a clear inter-sectionality between race, class and gender. Dalit women represent the most oppressed sections of South Asian societies, and face multiple forms of discrimination.
49.In spite of the fact that some governments have undertaken constitutional, legislative and policy initiatives, as well as set up administrative bodies to combat discrimination based on caste and other factors, due to a lack of political will and entrenched prejudices, these efforts have been ineffective and seriously inadequate in enabling social and economic mobility of these oppressed communities.
50.Caste-based practices - distinction, exclusion and restrictions on social and occupational mobility - lead to a negation of humanity and the inability to exercise all human rights.
51.Hence, the NGO community of Asia-Pacific is committed to the inclusion of caste-based discrimination on the agenda, the declaration and the programme of action of the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Forms of Intolerance (WCAR), to be held at Durban, South Africa, from August 31-September 8, 2001,
52.The Asia-Pacific NGO community strongly condemns the attempts of the governments of India and Japan to oppose the inclusion of caste-based discrimination in the agenda of the WCAR in spite of the assertion by the UN Committee for the Elimination of Racial Discrimination that caste discrimination is a form of racial discrimination. We urge other governments, as an urgent matter of basic justice, to support the inclusion of caste-based discrimination in the WCAR agenda, despite the pressure exerted by India in particular, which is home to hundreds of millions of persons facing caste-based discrimination.