Durban conference must discuss Caste issue
"CASTE DISCRIMINATION IS RACISM AND MORE", SAY ACADEMICS, JURISTS AND CIVIL SOCIETY GROUPS AT DELHI CONFERENCE
A group of 40 academicians, jurists, and representatives of NGOs and Civil society organisations, mostly from Dalit communities, who met at a one day conference in the Indian Social Institute, New Delhi, on 7th May 2001 have denounced the Indian subcontinent's caste system as `worse than racism'. The plight of the victims of the pernicious caste system demands an international scrutiny and debate, the experts have said in their statement. It is in this context that the meeting has taken serious exception to the political and diplomatic stratagems employed by the Government of India in trying to scuttle a discussion on Caste in the forthcoming World Conference Against Racism organised by the United Nations scheduled to be held from 31st August to 7th September 2001 in Durban, South Africa.
The Delhi meeting has also taken serious note of media reports that the Indian government may not allow NGO and Independent groups to go to South Africa to participate in the conference. This is a measure more characteristic of authoritarian governments to stifle dissent and curb democratic rights, which is utterly enemical to democratic ethos of India
The Indian government has never satisfactorily disclosed its real political compulsions in opposing an international discussion on Caste, which afflicts societies not just in India but also in other countries of the subcontinent, including Nepal, Pakistan, Bangladesh, and Sri Lanka, nations with a sizable Indian émigré population, and even social groups in countries such as Japan. There seems to be an abiding fear in the Indian establishment, particularly among the ruling upper caste elite, that such international scrutiny will expose the tradition-bound society's failure in eliminating this three thousand year old evil, and the failure of the State in ensuring implementation of Constitutional safeguards for victims of caste persecution and domination. There is also a fear that bringing the subject from under the national carpet to the light of the day on the world stage will embolden, and empower, the still stifled voices of the Dalit community, who at over 15 per cent of the One Billion Indian population today number more than scores of the world's important countries, and encourage them to strongly demand their share in the fruits of development. Savitri Kunadi, India's permanent representative to the United Nations office, has put on record India's official position that the caste system does not fall within the purview of racial discrimination. (Ms Kunadi's statement on "Racism, Racial Discrimination, Xenophobia and all forms of Discrimination" at the 57th session of the Commission on Human Rights.)
The Delhi meeting has expressed its full support to Dalit Groups, Human Rights organisations, NGOs and Individuals who are making a concerted effort in the UN Commission on Human Rights to get the Caste system included in the agenda for discussion in the Durban conference. In a democratic world, the people who could best represent their hopes and aspirations are those who are victims of the system. To deny them their right is against all democratic norms. To characterise Caste as an internal matter of India and to state that any discussion on it as an intrusion on Indian sovereignty goes counter to historical facts, and militates against evolution of contemporary philosophical, juridical and political norms and principles of equality, enshrined both in the Indian Constitution and in the Statutes and Special Resolutions of the United Nations. A discussion at Durban will, we are sure, strengthen India's international reputation as a country committed to values of pluralism, tolerance, diversity and equality which stands firm to counter the forces that seek to destroy these values. Refusal to allow a full international discussion on Caste will subject India to the charges of political and social hypocrisy and will damage its reputation in the comity of nations where it is seeking an enlarged role.
The participants in the Delhi meeting were clear that `Caste is Race Plus'. Inflicted by birth, sanctified by religion, glorified by tradition, Caste has had brutal repercussions for a fifth of India's population through the generations. Social scientists (ref Prof. TK Oommen, JNU, et al) have highlighted the Aryan conspiracy in India to subjugate the Dalit Bahujans by attempting to construct the Indian nation on the basis of purity of blood, language and culture. With Hindu revivalism, a fascist culture centered on the purity of the Aryan race, superiority of Sanskrit over other languages and brahamanic culture are imposed on the country.
Constitution of India recognises Caste in terms of Race :
The Indian legal system has consistently recognised and acknowledged the existence in Indian society of discrimination based on caste as a form of racial discrimination. In other words, the existence of discrimination on the basis of descent and occupation has been the subject matter of a number of Legislative measures including Constitutional provisions and judicial decisions of the Supreme Court of India and the High Courts of different States. The discrimination based on caste is at least equated with, or dealt at par with discrimination based on race.
The Constitutional provisions not only juxtapose caste with race and sex as prohibited grounds of discrimination but also equate caste discrimination with racial discrimination. Article 15 of the Constitution of India, which outlaws discrimination on grounds of religion, race, caste, sex or place of birth, treats caste at par with race as a prohibited ground of discrimination. Similarly, Article 16 while declaring equality of opportunity in matters of public employment as a fundamental right not only specifies caste as a prohibited ground of discrimination at par with race but also protects and declares the provision for reservation in educational institutions, job opportunities and legislatures (a form of affirmative action). Article 17 while declaring the abolition of untouchability has in effect accepted the existence of caste based discrimination and its effect of untouchability as racial discrimination. Article 23 prohibits forced labour as a form of discrimination. Similarly in Article 29 while declaring the fundamental rights of protection of the interest of minority rights, caste discrimination in admission into educational institutions is prohibited at par with racial discrimination. The provisions relating to reservation of seats for SCs/STs (Castes and Tribes listed in the Schedule appended to the Constitution of India) in the House of People (Lok Sabha) and in the Legislative Assemblies of the State (Article 331 and 332) do recognise the mischief of caste discrimination and attempt to remedy the same, which is a clear proof of the Constitution of India acknowledging caste discrimination as a form of racial discrimination. Article 335, mandating that the claims of SCs/STs to services and posts in connection with the affairs of the Union of India and the States, also reflects the acknowledgement of existence of caste discrimination as a form of racial discrimination. Article 338 which provides for National Commission for SCs/STs also reflects the said Constitutional acknowledgement. The provisions of Article 341 providing for the specification of the SCs for the purpose of the Constitution clearly show that the castes are not only equated with races but the scheduled castes include race. It is clear therefore, that according to the Indian Constitution the concept of SCs is inclusive of the concept of race. Thus caste based discrimination is not only a form of racial discrimination but is more than racial discrimination. Article 341 is extracted here below:
"341. Scheduled Castes - (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of said a notification issued under the said clause shall be varied by any subsequent notification". Several Legislative measures relating to SCs/STs clearly prove the existence of caste discrimination even more violent and more dangerous than racial discrimination in Indian society but also shows the ineffectiveness of the governmental measures already taken. The two particular legislations worth pointing out are (a) The Removal of Untouchability Act, 1955 which was improved and renamed subsequently as Protection of Civil Rights Act 1976 prescribing more stringent measures and (b) The SCs/STs (Prevention of Atrocities) Act, 1989.
The catena of judgements relating to the caste based discrimination against SCs and the remedies against the same shows that caste is recognised and acknowledged by the judicial decisions as a prohibited ground of discrimination not only at par with race but also as a form of racial discrimination. The different definitions of caste adopted by the several decisions of the Supreme Court of India show that for the purposes of treating caste as a prohibited ground of discrimination, caste is race in the Indian context (K.C. Vasant Kumar vs. State of Karnataka, 1985 (Supp.)1 SCR 352). In the said decision caste is even identified as a race or unit of race, as per the definition of caste accepted by Justice Venkataramaiah in the said case. The 9-Judge Constitution Bench in the case of Indira Sawhney vs. Union of India (1992 (Supp) 3 SCC 217 at 714 defines caste in the following terms: "a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group". Thus it is evident from the Constitutional, Legislative and judicial history of India that caste discrimination needs to be identified and treated as a form of racial discrimination, in fact a more virulent form of racial discrimination than the ones found in other countries.
The position of UNO
For many years UN bodies such as International Convention on Civil and Political Rights (ICCPR), International Convention on Social, Economic And Cultural Rights (ICESCR), Convention Against Elimination of Racial Discrimination (CERD), CEDAW and International Labour Organisation (ILO) had ignored the existence of caste based discrimination in India. This omission had serious negative repercussions on the ability of the UN to address discrimination against Dalits. Dalits could make little use of the space offered by human right bodies to raise the issue of caste-based discrimination. However, the UN human rights bodies have in recent years acknowledged and addressed the existence, prevalence and persistence of caste based discrimination in India and the rest of South Asia.
The UN Committee on the Elimination of Racial Discrimination in its meeting held on August 7 and 8, 1996, considered the question of discrimination against SCs/STs of India and made explicit reference to caste-based discrimination. The Committee held that "the situation of SCs/STs falls within the scope of the International Convention on the Elimination of All Forms of Racial Discrimination". The 52nd UN sub-committee in Geneva in August 2000 unanimously passed a resolution to prepare a working paper on 'Discrimination based on caste'.
Government of India's failure in CERD
Government of India adopted the Universal Declaration of Human Rights in 1948 and ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1969. It was not until 1996 the CERD Committee made its first explicit reference to caste discrimination, untouchability and Scheduled Castes. In 1996 State Report to CERD, the Government of India took the position that caste discrimination did not fall under the purview of CERD, because the term `descent' referred exclusively to descent based on race. However, the CERD made it clear that the term descent mentioned in Article 1 does not refer to race only and recommended a continuing campaign aimed at eliminating the institutionalised thinking of the high caste and low caste mentality. It also recommended that Government of India's next periodic report, which was due on January 4, 1998 be a comprehensive report. But, so far the Government of India has not submitted its report to CERD. Not only that, the Government of India has opposed all the resolutions passed in the 52nd UN sub-commission in Geneva in August 2000.
The Position of the Civil Society Groups and NGOs
The civil society groups and NGOs active among the Dalit Bahujans fail to understand why India has been resolutely opposing the inclusion of caste question, which is the primary source of human rights violation of Dalits and the basis of economic deprivation and social degradation. On apartheid in South Africa the Government of India occupied the high moral ground and was in the forefront of the campaign of sanctions and boycotts.
Several Civil Society groups and NGOs want the global community to acknowledge and condemn the caste-based discrimination as a distinct form of racism. UN bodies will be failing in their duty to the people of the world if they do not take this matter at the Durban conference and devise drastic steps to eradicate the caste-based discrimination. The failure to include caste will erode the credibility of the United Nations and compromise its historical role.
Prof. T.K.Oommen, President, International Sociology Association (1990,1994), Professor of Sociology, Jawaharlal Nehru University, New Delhi
Dr.Ambrose Pinto, Executive Director, Indian Social Institute, New Delhi
John Dayal, Journalist
M.Gopinath, Bahujan Samaj Party
Dr.K.S.Chauhan, Advocate, Supreme Court
Dr. R.M.Pal, Editor, PUCL Bulletin
Dr.M.P.Raju, Advocate, Supreme Court
P.L.Mimroth, Advocate, Supreme Court
Dr. I. Thirumali, Lecturer, Sri Venkateshwara College, Delhi
H. Venkatesh, Social Activist
P. Muthukumar, Lecturer, Presidency College, Chennai
Ashraf K.H., Social Activist, Manipal, Karnataka
Zawahir Siddique, Lecturer, HKBK College of Engineering, Bangalore
Mahi Pal Singh, PUCL, Delhi
Het Ram Balmiki, Advocate and Social Activist
N. Rajkumar, Lecturer, Dayal Singh College, Delhi University
Sundara Babu, Researcher, Jawaharlal Nehru University, New Delhi
Joseph Gathia, Social Activist, New Delhi
N. Manohar Prasad, Social Study Circle, New Delhi
Somen Chakraborty, Indian Social Institute
Dr. Chinna Rao, Research Officer, Jawaharlal Nehru University
Narendra Kumar, M.A., M.Phil., Motilal Nehru College, Delhi