India fails UN caste test
By Suhas Chakmas, Director, Asian Centre for Human Rights
On 23 and 26 February this year, after examination of India's 16th to 19th periodic reports on the implementation of the United Nations Convention on the Elimination of All Forms of Racial Discrimination, the United Nations Experts Committee on the said Convention (known as CERD Committee) reaffirmed 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 which nullify or impair their equal enjoyment of human rights". The UN CERD Committee therefore held that "discrimination based on the ground of caste" falls within its mandate.
Having ratified the International Convention on the Elimination of All Forms of Racial Discrimination in December 1968, among others, to combat discrimination at national level, India has held unjustifiable position that the Convention is not applicable to India. So during the examination of the periodic reports in February 2007, the representatives of the government of India tried in vain to keep discrimination against the Scheduled Castes and Scheduled Tribes out of the purview of the CERD Committee. They failed to do so but ended up making the CERD Committee issue one of the longest recommendations ever made. Aggression and arrogance are not necessarily the best tools to deal with UN independent experts.
In its report, India stated that it was providing the report "as a matter of courtesy" and not because discrimination against the Scheduled Castes and Scheduled Tribes falls under the purview of the UN CERD Committee. When Professor Dipankar Gupta, a member of the Indian delegation, called Mr. José Augusto Lindgren Alves, one of the UN experts, a "rubble rouser" at the concluding session on 26 February 2007, the acrimony could no longer be hidden despite excellent presentation made by Sundeep Khanna, Additional Secretary of Ministry of Social Justice and Empowerment. Mr Khanna convincingly explained administrative policies, including the framework for defining Scheduled Tribes, Parliamentary and Legislative Committees and the objectives of new schemes to combat discrimination against the Scheduled Castes and the Scheduled Tribes.
India started its presentation to explain how caste discrimination is not synonymous with racial discrimination. There was no disagreement from the experts that "caste" is not equivalent of "race", but certainly any form of discrimination on the grounds of "race, colour, descent, or national or ethnic origin" as provided under Article 1 of the Convention falls within the mandate of the Committee. India's explanations on caste and descent were far from convincing. On a specific question to which caste a child belongs in case of an inter-caste marriage, Professor Gupta replied, "a child of "X" caste who married someone of "Y" caste, was a member of no caste". "My child is an example" - he added.
If children of inter-caste marriages belong to "no caste", how does the government of India implement its affirmative action programmes? The Supreme Court has given numerous judgements affirming that in case of inter-caste marriages, children will get benefit of reservations only if the father belongs to the Scheduled Tribes and Scheduled Castes. Indian delegation was not even willing to accept patriarchy as the determinant factor for identifying caste or tribe!
Caste and untouchability may not be acute in the metropolis. But as the UN CERD Committee noted in its Concluding Observations, "despite the formal abolition of "untouchability" by Article 17 of the Indian Constitution, de facto segregation of Dalits persists, in particular in rural areas, in access to places of worship, housing, hospitals, education, water sources, markets and other public places".
Indian delegation even refused to recognise the Scheduled Tribes as "distinct groups". India's description of "genealogical demonstrable characteris-tics" to define descent is debatable but to suggest that tribals not "distinct groups" goes against common sense. For this one does not need to know the Puranas, the Upanishads or the Bhagawat Gita as quoted by Mario Jorge Yutzis, a CERD Committee expert and renowned Prof of Philosophical Anthropology from Argentina, to dismiss India's rigid exp-lanations, but elementary knowledge on how the colonial British brought the tribes of the North East India under its control will give an indication pf the distinctiveness of the tribal groups. Not surprisingly the UN CERD Committee recommended that India "formally recog-nize its tribal peoples as distinct groups entitled to special protection national and international law, including the Conven-tion and provide information on the criteria used for determining the member-ship of scheduled and other tribes."
The International Convention on the Elimination of All Forms of Racial Discrimination is essentially a legal document. The CERD Committee required explanations as to how any violation of the two cardinal principles of international human rights law i.e. equality and non-discrimination on the grounds of "race, colour, descent, or national or ethnic origin" are combated, and not a lecture of sociology.
In its report, India highlighted that it tries to eliminate "barriers between races, and to discourage anything which tends to strengthen racial division". Then how does one explain the naming of various regiments of Indian Army such as Rajput Regiment, Jat Regiment, Sikh Regiment, Dogra Regiment, Naga Regiment, Gorkha Rifles etc, which certainly contribute to "race, ethnic, caste and regional consciousness"? In fact, in May 2004 the present Minister of Chemical, Fertilizers and Steel, Mr Ram Vilas Paswan demanded that forming a "Dalit Regiment on the pattern of Sikh Regiment, Jat Regiment or Mahar Regiment" should be included in the Common Minimum Programme of the United Progressive Alliance government.
The UN CERD Committee made a number of recommendations (excerpts on tribals are given in the box). In fact CERD Committee did not make any recommendation which has not already been made by various National Commissions and the Parliamentary Committees on the Welfare of the Scheduled Castes and Scheduled Tribes or the Parliamentary Standing Committee on Social Justice and Empowerment.
As the South African expert, Ms. Patricia Nozipho January-Bardill stated, she "failed to understand why, if India was truly committed to social cohesion and eliminating bigotry and prejudice, it regarded the Convention as a threat rather than an opportunity to challenge the caste system". But the Indian delegation was not ready to consider the Convention as an opportunity to tackle the caste issue.