The Government of India reiterates its position that 'caste' cannot be equated with 'race' or covered under 'descent' under Article 1 of the Convention - India's 15th-19th Periodic Report to the Committee on the Elimination of Racial Discrimination (CERD).
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. Therefore, the Committee reaffirms that discrimination based on the ground of caste is fully covered by Article 1 of the Convention. - CERD, concluding observations on India's Periodic Report.
These contradictory statements show where India stands as far as caste-based discrimination is concerned. In 2002, the United Nations' (UN) Committee on the Elimination of Racial Discrimination, in its general recommendation no.29, expanded the meaning of the term 'descent' in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), to include discrimination based on caste. The convention, which came into force in 1969, has been ratified by 173 countries, including India. Despite this, and despite the United Nations Sub-Commission on the Promotion and Protection of Human Rights reiterating that discrimination based on work and descent is a form of racial discrimination, the Indian government's stand on this issue has remained the same: caste is not race.
The CERD, an independent panel of experts established under the international convention on racial discrimination, monitors how well signatories are implementing the convention, through periodic reports submitted by State parties. The CERD provides "concluding observations" on these State reports.
India's reluctance to consider the issue seriously is clear from the way it has treated its responsibilities as a signatory to the international convention. Though periodic reports are due to the CERD every two years, all of the reports from 1998 to 2006 were submitted to the committee only in 2006 as a joint 15th-19th periodic report. When this report came up for review at the CERD's 70th session meeting at Geneva in February-March 2007, many activists were hoping that there would be a change in the Indian government's position.
India's joint periodic report detailed the legislative and policy measures in place currently to address racial discrimination, but did not offer an impact assessment of these measures. On caste-based discrimination, the government reiterated its stand that as the Indian Constitution did not consider caste and race to be the same (Article 15 of the Constitution prohibits discrimination on grounds of race and caste and lists them as separate categories), they could not be conflated.
Non-government organisations, individuals and civil society coalitions, which had submitted alternate reports - known as shadow reports - to the CERD, rejected the government's stand. These reports mentioned several instances of caste-based discrimination faced by Dalits.
A joint report by the United States-based Human Rights Watch and Centre for Human Rights and Global Justice, titled Hidden Apartheid: Caste Discrimination against India's 'Untouchables', pointed out that more than 165 million persons in India faced discrimination while accessing education, health, housing, property, employment and equality before the law simply because of their caste. The report, dated February 2007, documented India's "systematic failure to respect, protect, and ensure Dalits' fundamental human rights".
Discussions and dialogues on India's periodic report at the CERD's 70th session were focused on the issue of caste-based discrimination and the plight of India's Dalit population. The Indian delegation, which was led by India's permanent Ambassador to the UN Swashpawan Singh, Solicitor General Goolam E Vahanvati and academic Dipankar Gupta, among others, tried to establish on sociological grounds that caste was different from race and could not be equated under any circumstances. Gupta denied that caste fell under the term 'descent' as described in the convention. The Indian delegation's stand digressed from the discussion at hand, which was whether caste-based discrimination was similar in nature to descent-based discrimination, and whether the convention covered such discrimination.
The CERD, in its observations on India's report presented at the session, rejected India's stand on caste-based discrimination. The committee criticised the government for failing to provide information on steps taken to implement anti-discrimination and affirmative action laws and policies. The panel also insisted that the government present such details in its next periodic report.
The CERD also expressed concern that India did not recognise the country's tribal population as "distinct groups entitled to special protection under the Convention". It recommended that India "strengthen its efforts to eradicate the social acceptance of caste-based discrimination and racial and ethnic prejudice, eg by intensifying public education and awareness raising campaigns, incorporating educational objectives of inter-caste tolerance and respect for other ethnicities, as well as instruction on the culture of scheduled castes and scheduled and other tribes, adequate media representation of issues concerning scheduled castes, tribes and ethnic minorities, with a view to achieving true social cohesion among all ethnic groups, castes and tribes of India".
Despite CERD's tough stance, India has been unwilling to engage in a constructive dialogue on caste-based discrimination. Most recently, in April 2008, when the UN Human Rights Council conducted a mandatory review of the human rights records of its member countries, India stated that caste-based discrimination was not racial in origin. India's periodic report to the UN's Committee on Economic, Social and Cultural Rights (CESCR), which monitors the implementation of the International Covenant on Economic, Social and Cultural Rights, had a similar tenor. In its concluding observations in a review of the report, conducted in May 2008, the CESCR noted that India had failed to address "persistent de facto caste-based discrimination" despite boasting of several legislative measures.
According to the Crime in India Report 2006, prepared by the National Crime Records Bureau of the Ministry of Home Affairs, the crime rate against SCs recorded an increase of 3.6 per cent in one year, with the number of cases reported rising from 26,127 in 2005 to 27,070 in 2006.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, referred to as the POA Act, aimed at penalising discriminatory acts against these groups, has remained ineffective. Despite the high incidence of crime against SC/STs and the strict penal provisions contained in the POA Act, the number of cases registered under this Act remains low. In 2006, 8581 and 1232 cases were registered across India under the POA Act for atrocities against SCs and STs respectively. The average conviction rate for crimes against SCs/STs is also dismal low at 27.6 per cent (SCs) and 28 per cent (STs), although the charge-sheeting rates are high.
While India's defiance of monitoring mechanisms like the CERD points to a complete lack of political will to adopt international standards and implement domestic laws to overcome discrimination, it also points to another failure. The country's non-cooperation with international mechanisms, at some level, also points to the failure of the United Nations' human rights mechanisms to ensure enforcement of international human rights norms.