I. Summary List of the Critical Issues Pertaining to India’s Periodic Report to the Committee on the Elimination of Racial Discrimination

Human Rights Watch and the Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law submit the following information to the Committee on the Elimination of Racial Discrimination (Committee or CERD) for consideration in its review of India’s fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth periodic reports under the International Convention on the Elimination of All Forms of Racial Discrimination (Convention or ICERD). This joint-submission is based on in-depth Human Rights Watch investigations on caste discrimination in India and the findings of Indian governmental and non-governmental organizations (NGOs) on caste-based abuses. 

Discriminatory and cruel, inhuman, and degrading treatment of over 165 million people in India has been justified on the basis of caste. Caste is descent-based and hereditary in nature. It is a characteristic determined by one’s birth into a particular caste, irrespective of the faith practiced by the individual. Caste denotes a traditional system of rigid social stratification into ranked groups defined by descent and occupation. Caste divisions in India dominate in housing, marriage, employment, and general social interaction—divisions that are reinforced through the practice and threat of social ostracism, economic boycotts, and physical violence. This report focuses on the practice of “untouchability”—the imposition of social disabilities on persons by reason of their birth in certain castes. This practice relegates Dalits, or so-called untouchables (known in Indian legal parlance as scheduled castes), to a lifetime of discrimination, exploitation and violence, including severe forms of torture perpetrated by state and private actors in violation of the rights guaranteed by the Convention. Although the practice has been condemned by many Indian leaders, including most recently by Prime Minister Manmohan Singh, unless the government accepts responsibility to end the widespread prejudice, crimes against Dalits will continue. India has consistently cited its numerous legislations and government policies as a measure of compliance with its obligations to end caste-based discrimination, choosing to ignore its failure to implement these measures which has resulted in continued, and sometimes enhanced, brutalities against Dalits.

Human Rights Watch and the CHRGJ respectfully request that the following issues be raised in the List of Issues addressed to the State Party and in the State Party examination.

Article 1

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.” 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.” However, we welcome Prime Minister Singh’s comment on December 27, 2006 that:

Dalits have faced a unique discrimination in our society that is fundamentally different from the problems of minority groups in general.  The only parallel to the practice of ‘untouchability’ was Apartheid in South Africa. Untouchability is not just social discrimination. It is a blot on humanity.

We hope that this statement will prompt appropriate reforms in government policies.

On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Elaborate upon the basis for India’s position that descent-based discrimination does not encompass caste discrimination, including why India has not brought its definition of descent-based discrimination in line with the Committee’s General Recommendation XXIX.

  • Elaborate on measures taken pursuant to General Recommendation XXIX, and monitor and report on such measures.

  • Provide data, disaggregated inter alia, by caste and gender on the enjoyment of Convention rights.

    Article 2

    India’s failure to ensure that all public authorities and public institutions do not engage in caste-based discrimination is widespread. Two examples exemplify this failure: treatment of Dalits by the police and discrimination in the provision of disaster relief. India’s National Human Rights Commission (NHRC)—a statutory government body that the Indian government describes as the apex national institution to protect human rights and redress grievances—has commented that the law enforcement machinery is the greatest violator of Dalits’ human rights. According to the NHRC, widespread custodial torture and killing of Dalits, rape and sexual assault of Dalit women, and looting of Dalit property by the police “are condoned, or at best ignored.” This problem is not a recent one. In 1979 India constituted the National Police Commission to analyze problems in police performance. However, the Commission’s recommendations, which include recommendations specific to police abuse of Dalits, have still not been adopted. While the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 (hereinafter Prevention of Atrocities Act, 1989) and the Supreme Court guidelines set out in the D.K. Basu case are available legal tools to prevent torture, illegal detention, or improper interrogation of Dalits, jurists, human rights activists and civil rights groups claim that a lack of political will and immunity laws that shield those responsible for human rights abuses from prosecution, allow the problem of torture and other forms of custodial abuse to continue unchecked. 

    Dalits are particularly vulnerable to arrest under draconian security laws. Additionally, under a theory of collective punishment, the police often target entire Dalit communities in search of one individual and subject the community to violent search and seizure operations. Dalit women are particularly vulnerable to sexual violence by the police, which is used as a tool to punish Dalit communities. Police also actively allow private actors to commit violence against Dalits with impunity, and at times, collude with private actors in committing such atrocities. Police systematically fail to properly register these crimes under the Prevention of Atrocities Act, 1989 and the Protection of Civil Rights Act, 1995. 

    According to separate investigations by the National Campaign on Dalit Human Rights (NCDHR) and Human Rights Watch, India failed to protect Dalits from discrimination in the distribution of aid in the wake of two of India’s largest natural disasters in recent years: the Gujarat earthquake in January 2001 and the Indian Ocean tsunami in December 2004. India has also failed to encourage integrationist movements or eliminate barriers between castes. It has allowed segregation in schools and housing, and has failed to faithfully implement constitutional and legislative abolitions of “untouchability” practices. Additionally, as Dalits increasingly organize to protest their discriminatory treatment and claim their rights, the government has consistently failed to protect Dalits against retaliatory attacks by upper-caste groups, including the rape of Dalit women, and has failed to address social and economic boycotts against Dalits, thereby further discouraging integrationist movements. 

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Identify measures the government is implementing to ensure appropriate police reforms to eliminate police abuses against Dalits.

  • Indicate whether a timetable exists for India’s ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

  • Outline measures undertaken to implement the recommendations of the National Police Commission and the Supreme Court’s D.K. Basu guidelines with particular attention to protection of Dalits from torture.

  • Explain factors that account for the low rate of convictions in cases brought by Dalits and measures taken to address these factors. 

    The extreme marginalization and persecution endured by Dalits necessitate efforts by the government to ensure their development and protection. Accordingly, under constitutional provisions and various laws, India grants Dalits a certain number of privileges, including “reservations” (quotas) in education, government jobs, and government bodies. Like many of the protective measures adopted, the reservation policy has not been successfully implemented for Dalits. Caste-based occupational distribution is reinforced in reserved government employment, with Dalits assigned primarily to the posts of sweepers. Reservations in higher education continue to be met with a great deal of resistance leading to under-enforcement. Additionally, there has been widespread public opposition to reservations for Dalits in local government bodies, often leading to acts of violence, including the rape and murder of Dalit candidates.

    The NHRC has recommended that the government identify institutions that had not accepted reservations—including judiciary and defense forces—and develop measures to ensure that Dalit candidates have the opportunity to compete for these positions. The National Commission for Scheduled Castes and Scheduled Tribes—a constitutional body with jurisdiction to promote respect for the human rights of Dalits and tribal groups, monitor and investigate the observance of these rights, and secure appropriate redress when these rights have been violated—has stated that the private sector, which continues to enjoy government patronage, should also be brought under the purview of the reservation policy. According to government estimates in 2000, the unemployment rate for Dalits and tribal groups was double that of non-Dalits/tribals. Additionally, public sector divestment to private owners is estimated to have left 200,000 Dalit employees jobless. Dalits continue to be significantly underrepresented in most professional strata. Dalit representation in India’s high industries, exports, imports, and electronic industries sectors is dismal.

    The Government of India has also established several programs for the development of Dalits. According to the NHRC, however, the beneficial impact of these programs has been hindered by inadequate investment of public resources; non-utilization or diversion of funds earmarked for Dalit development; lack of programs specifically targeted to Dalit development; poor preparation of such projects; and a lack of monitoring of development programs, leading to the failure of many such programs to reach their target groups.

    Additionally, India has failed to address the multiple axes of discrimination faced by Dalit women— including their unequal access to services, employment opportunities, and justice mechanisms as compared to Dalit men—and threats to their personal security, including through brutal acts of sexual violence and through the system of devadasi, in which a girl, usually before reaching the age of puberty, is ceremoniously dedicated or married to a deity or to a temple.

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Identify strategies for overcoming obstacles in the implementation of the reservations policy, including how the Government intends to ensure protection from retaliation for Dalit candidates in all local elections where seats are reserved for Dalits, including village council elections, and provide an update on the status of proposals to extend equal opportunity measures including reservations to other public spheres and the private sector.

  • Elaborate on plans to implement laws and government policies to secure the protection and development of Dalits, and of Dalit women in particular.

    Article 3

    Residential segregation of Dalits is prevalent across the country, and is the rule rather than the exception. Segregation is also evident in schools, in access to public services, and in access to services operated by the private sector (as described under Article 5). In his 1999 Annual Report, the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance found “untouchability” to be “very much alive” in rural areas, as reflected in caste-based segregation in housing, schools, public services, public places, and in the prohibition against Dalits’ use of shared water sources. A recently published survey investigating the extent of “untouchability” practices in 565 villages in 11 Indian states found that the constitutionally abolished crime of “untouchability” continues to profoundly affect the lives and psyches of millions of Dalits. “Untouchability” practices were documented in almost 80 percent of the villages surveyed.

    On the basis of this information, we respectfully request that the following issue be raised with the State Party:

  • In light of General Recommendation XIX on Article 3 of the Convention, indicate specific measures that India has implemented to eradicate de facto segregation and the practice of “untouchability,” and provide information on the impact of these measures.

    Article 4

    In its periodic report, India indicates that “[n]o cases have arisen under the… legislations for inciting racial disharmony or disseminating ideas of racial superiority.” The absence of such cases must be questioned in light of the casteist and anti-Christian and anti-Muslim propaganda of the Sangh Parivar, which serves as the umbrella organization for Hindu nationalist organizations in India, including the Rashtriya Swayamsevak Sangh (National Volunteer Corps, RSS), the Vishwa Hindu Parishad (World Hindu Council, VHP), and the VHP’s militant youth wing, the Bajrang Dal. These organizations bear collective responsibility for widespread violence against Muslims and Christians in India, and have disseminated propaganda targeting both Dalits and religious minorities. The political wing of the Sangh Parivar, the Bharatiya Janata Party (BJP), led the Government of India in alliance with other parties between 1998 and 2004, and continues to head several state governments. 

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Indicate measures undertaken by India to combat hate speech and other forms of propaganda inciting caste discrimination and violence, and discrimination and violence against religious minorities.

  • Indicate measures undertaken by India to prosecute and punish members of Sangh Parivar-affiliated groups responsible for atrocities against Dalits and religious minorities, including violent attacks, massacres, and forced “reconversions” to Hinduism. 

    Article 5

    Dalits’ fundamental civil, political, economic, social, and cultural rights are routinely violated by state actors and private individuals.

    The right to equal treatment before the tribunals and all other organs administering justice

    In the administration of justice, police, prosecutors, and judges fail to properly pursue cases brought by Dalits concerning discriminatory acts. This is evidenced by the high rate of acquittals and the large number of cases involving offenses and atrocities against Dalits still pending before the courts. Dalit women in particular lack sufficient redress for the crimes committed against them due to the caste and gender biases of India’s law enforcement machinery. 

    The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution

    The police have systematically failed to protect Dalit homes and Dalit individuals from acts of looting, arson, sexual assault, torture, and other inhumane acts such as the tonsuring, stripping and parading of Dalit women, and forcing Dalits to drink urine and eat feces. Much like cases of police abuse against Dalits, attacks by private actors often take the form of collective punishment, whereby entire communities or villages are punished for the perceived transgressions of individuals who seek to alter village customs or demand their rights.

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Provide detailed information on any specific training for members of the judiciary, law enforcement officials and other public officials on the provisions of the Convention, as well as applicable domestic legislation, and their application to Dalits in particular.

  • Provide data on the number of cases of caste discrimination considered by courts since the State Party’s last periodic report, case outcomes, and remedies (including civil remedies) available and granted to victims of caste discrimination.

    Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service

    Dalits’ political rights, especially the right to vote freely and the right to stand for election, have repeatedly been denied by upper-caste community members by booth-rigging and booth capturing, denial of access to polls, intimidation, and violence. 

    The right to freedom of opinion and expression and freedom of peaceful assembly and association

    Dalits’ right to freedom of opinion and expression, and rights to freedom of peaceful assembly and association are compromised by police abuse of Dalit activists, retaliatory attacks by private actors that are carried out with impunity, and social and economic boycotts against Dalits. 

    The right to form and join trade unions

    Dalits’ right to form and join trade unions is undermined by an unwillingness to register unions where workers are illiterate.   

    On the basis of this information, we respectfully request that the following issue be raised with the State Party:

  • Provide information (including statistical data, disaggregated by caste and gender) on the actual participation of Dalits in State institutions, including national and local government, the police, the judiciary, and in institutes of higher education.

    The right to freedom of movement and residence within the border of the State and the right to leave any country, including one's own, and to return to one’s country

    Dalits’ right to freedom of residence is severely curtailed by the practice of “untouchability” which often dictates where Dalits must live. Dalits’ right to freedom of movement within India is curtailed by conditions that make Dalits vulnerable to migratory labor and by the forced displacement of Dalits in the aftermath of episodes of caste violence. Moreover, Dalits’ right to leave India, while formally granted, is not substantively guaranteed due to Dalits’ disproportionately low economic status and their inability to acquire relevant documents and the proof necessary, for instance, to make a passport.

    The right to marriage and choice of spouse

    Strict prohibitions on marriage and other social interaction between Dalits and the upper-caste routinely violate the rights of Dalits to marry and choose their spouse. These prohibitions on inter-marriage are a hallmark feature of the caste system and are designed to ensure rigid social norms of purity and pollution. Inter-marriages are frequently the flashpoint for conflicts and can be extra-judicially punished by upper-caste dominated panchayats (village councils) through public lynching of couples or their relatives, murder (of the bride, the groom, or their relatives), rape, public beatings, and other sanctions.

    The right to own property alone as well as in association with others and the right to housing

    The right to own property is systematically denied to Dalits. Landlessness—encompassing a lack of access to land, inability to own land, and forced evictions—constitutes a crucial element in the subordination of Dalits. When Dalits do acquire land, elements of the right to own property—including the right to access and enjoy it—are routinely infringed. Land reform legislation is neither implemented nor properly enforced. Dalits’ efforts to secure land have been met with State violence or retaliation by private actors in the form of violence or economic sanctions. Dalits’ right to housing is further undermined by residential segregation, discrimination in housing in urban environments, and the aforementioned violations of their right to own property.

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Provide information on measures that are being taken to protect Dalits against displacement from their homes, to compensate Dalit victims of displacement, and to prosecute those responsible for committing atrocities to deter or punish inter-caste marriages.

  • Provide information on the successes and failures of land reform legislation and on efforts to ensure Dalits’ right to own property, including on the nature of strategies that may be needed to maximize the effectiveness of land reform for Dalits.

    The right to freedom of thought, conscience, and religion

    Dalits in India face a number of restrictions on their right to freedom of thought, conscience, and religion. Dalits are, for instance, routinely denied entry into Hindu temples. Even when such entry is sanctioned by the courts, priests and upper-castes resist such moves, often leading to violence. Dalits have responded to ill-treatment by upper-caste Hindus by converting en masse to Buddhism, Christianity, and historically, to Islam. However, the loss of constitutional privileges upon conversion (to Christianity and Islam) is a serious impediment to Dalits’ freedom to choose their religion. In addition, the introduction of anti-conversion legislation in several states has made religious conversion extremely difficult if not impossible. Tragically, even conversion does not guarantee escape from their treatment as “untouchables” since “untouchability” is practiced across all faiths in India.   

    On the basis of this information, we respectfully request that the following issue be raised with the State Party:

  • Provide information on whether the State is reviewing and addressing the potential negative effects of anti-conversion legislation on the right to freedom of thought, conscience, and religion, and on whether the State is considering extending scheduled caste benefits to all Dalits, regardless of the faith they practice.

    Rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favorable remuneration

    The denial of the right to work and free choice of employment lies at the very heart of the caste system. Dalits are forced to work in “polluting” and degrading occupations such as manual scavenging and are subject to exploitative labor arrangements such as bonded labor, migratory labor, and forced prostitution. Dalit children are vulnerable to trafficking and the worst forms of child labor in these and other areas. Dalits are also discriminated against in hiring and in the payment of wages by private employers. Dalits’ attempts to enforce their rights are met with retaliatory violence and social and economic boycotts. Laws designed to eradicate exploitative labor arrangements—such as the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, the Bonded Labour System (Abolition) Act, 1976, the Inter State Migrant Workmen (Regulation of Employment and Service Conditions) Act, 1979, the Child Labour (Prohibition and Regulation) Act, 1986, the Minimum Wages Act, 1948, the Equal Remuneration Act, 1976, and the Karnataka Devadasi (Prohibition of Dedication) Act, 1992—and where relevant, their accompanying rehabilitation programs, are largely ineffective.

    On the basis of this information, we respectfully request that the following issue be raised with the State Party:

  • Outline how India plans to ensure effective eradication of exploitative labor arrangements and the effective implementation of rehabilitation schemes for Dalit bonded and child laborers, manual scavengers, and devadasis.

    The right to public health, medical care, social security, and social services

    Dalits are often refused admission to hospitals, or access to health care and treatment in violation of their rights to the highest attainable standard of health and social services. In a number of cases those who are admitted receive discriminatory treatment. In addition, caste-based occupations that Dalits are made to perform, such as manual scavenging and forced prostitution, frequently expose Dalits to serious and sometimes fatal health hazards. Manual scavengers are routinely exposed to both human and animal waste without the protection of masks, uniforms, gloves, shoes, appropriate buckets, and mops. This has severe repercussions for their health; the majority of scavengers suffer from anemia, diarrhea and vomiting, with 62 percent suffering respiratory diseases, 32 percent suffering skin diseases, 42 percent suffering jaundice, and 23 percent suffering trachoma, leading to blindness. Many scavengers have also died of carbon monoxide poisoning while cleaning septic tanks. In Mumbai, for instance, Dalits are lowered into manholes to clear sewage blockages—often without any protection. More than 100 workers die every year due to inhalation of toxic gases or drowning in excrement. Dalit women and girls who are forced to become devadasis, and ultimately auctioned to urban brothels, are at particular risk of contracting HIV/AIDS. 

    The right to education and training

    The right to education free from discrimination is not secured for Dalit children. 99 percent of Dalit students are enrolled in government schools that lack basic infrastructure, classrooms, teachers, and teaching aids. Dalit children face continued hurdles and abuse from teachers and fellow non-Dalit students, including through segregation both in classrooms and in the provision of mid-day meals. Dalit schoolchildren also face discrimination and discouragement from higher-caste community members who perceive education for Dalits as both a waste and a threat. Their hostility toward Dalits’ education—which includes discrimination against Dalit teachers—is linked to the perception that Dalits are not meant to be educated, are incapable of being educated, or if educated, would pose a threat to village hierarchies and power relations. Additionally, Dalit children are often subjected to corporal punishment by their teachers. As the Special Rapporteur on the right to education noted in his report before the 67th session of the then-Commission on Human Rights (CHR), “teachers have been known to declare that Dalit pupils ‘cannot learn unless they are beaten.’” Dalits’ labor patterns (migratory and child labor) also adversely affect access to education. A combination of these factors results in low enrollment, high drop-out rates, and low literacy rates of Dalit students.

    The right to equal participation in cultural activities

    Dalits are prohibited from taking part in religious and cultural rituals and festivals, including through a ban on marriage processions on roads. Where Dalits are included in village ceremonies and festivals, their participation is limited to the performing of degrading tasks. Additionally, they are expected to provide services during rituals and festivals without remuneration.

    The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres, and parks

    Dalits are denied equal access to a spectrum of places and services intended for use by the general public, such as police stations, government ration shops, post offices, schools, water facilities, and village counciloffices. As a result of segregation in water facilities, more than 20 percent of Dalits do not have access to safe drinking water, only 10 percent of Dalit households have access to sanitation (as compared to 27 percent for non-Dalit households), and the vast majority of Dalits depend on the “goodwill” of upper-caste community members for access to water from community wells. Dalits are also excluded from, or receive discriminatory treatment in, private businesses, including tea shops, food stalls, barber shops, and cinemas. Because of strictly enforced prohibitions on inter-dining, Dalits are made to use separate crockery and cutlery, and drink from separate tea glasses which they are then required to wash.

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Identify measures to protect Dalits’ right to health, including through ensuring greater access to health care services, and through eradicating the inhuman practice of septic tank cleaning, and other hazardous tasks performed by manual scavengers. 

  • Identify steps taken to eradicate segregation, particularly in access to public services, and to address the violations of Convention rights occasioned by segregation, such as the right to water and the right to education free from discrimination.

    Article 6

    In its periodic report, India cites to its constitutional provisions and legislative measures (which constitutionally must apply to all people irrespective of caste) that open its courts to victims of discrimination. In 2004 the NHRC released the findings of an in-depth examination of the implementation of protective legislation for scheduled castes. The report is a strong indictment of the government’s failure to carry out its promises to protect Dalits from atrocities and violations of their fundamental rights and to grant remedies for rights’ violations. On the question of remedies, the NHRC found that even where cases are properly registered, several states are not providing economic relief or compensation to victims of atrocities as is required. 

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • Provide further information on the current situation regarding access to justice and right to remedies for Dalit communities, including the effectiveness of existing access to justice mechanisms and how the government intends to enforce the requirement of economic relief and compensation for victims.

  • Provide information on the composition, status, resources, and activities of the National Commission on Scheduled Castes and Schedules Tribes, including the number of complaints received (if any) and their nature, investigations by the Commission, and forms of redress provided.

  • Identify obstacles in the implementation of legislation designed to protect Dalits and strategies to overcome these obstacles, including the extent to which the State Party intends to incorporate the recommendations of the 2004 report of the NHRC on atrocities against scheduled castes.

    Article 7

    There is a severe lack of public education and awareness of caste discrimination in India. Treatment of caste discrimination in textbooks and curricula may strengthen caste division and prejudice, as does the pervasive practice of segregation in government schools. Even progressive curricula either exclude any mention of caste discrimination or discuss the caste system in a way that suggests that caste inequities and discrimination no longer exist. School textbooks may similarly fail to mention caste discrimination, may attempt to justify the origins of caste discrimination, or may attribute the unequal situation of Dalits to the Dalit community. The problem is compounded by inadequate media representation of Dalit issues and the lack of Dalit journalists generally. Since caste-based discrimination is not as highly visible in urban settings, opinion makers, particularly the media, do not pay sufficient attention to the rampant and continuing practice in rural areas. The NHRC has found that the media “provides negligible space to …plight/problems” of Dalits. Instead, these communities mostly receive media attention only when the discussion is focused on violent protests, backwardness, population growth, and lack of entrepreneurship and productivity, thereby perpetuating caste-based stereotypes.

    On the basis of this information, we respectfully request that the following issues be raised with the State Party:

  • How the government intends to ensure that all textbooks, curricular, and media representation of Dalits do not strengthen caste division and prejudice.

  • Indicate whether measures have been taken to disseminate the Convention and General Recommendation XXIX and to promote educational measures that combat caste discrimination.

    Human Rights Watch and CHRGJ thank the Committee for its consideration of this information.