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India's caste not found
good enough at UN
Suhas Chakma
India ratified the
International Convention on the Elimination of All Forms of Racial
Discrimination in December 1968 but later maintained that the
Convention is not applicable to it. So during the examination of the
reports in February 2007, Indian government representatives tried in
vain to keep discrimination against the SCs and STs out of the
purview of the CERD Committee. They failed to do so and ended up
making the CERD Committee issue one of the longest recommendations
ever made. There are many things that Indian establishment can learn
from Sikhism, among these the construct of a casteless society. But
the Sikhs would have to first follow it themselves, or they would be
in the same position in which India is today in the eyes of the
global community.
On
February 23 and 26 this year, after examining 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 Convention (known as the
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” is part of its agenda.
Having ratified the International Convention on the Elimination of
All Forms of Racial Discrimination in December 1968 to combat
discrimination at the national level, India has held the
unjustifiable position that the Convention is not applicable to it.
So during the examination of the periodic reports in February 2007,
Indian government representatives 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 and 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 independent UN experts.
In
its report, India stated that it was providing the report “as a
matter of courtesy” and not because discrimination against the SCs
and STs is under the purview of the CERD Committee. When Professor
Dipankar Gupta, a member of the Indian delegation, called Lindgren
Alves, one of the UN experts, a “rabble rouser” at the concluding
session on February 26, 2007, the acrimony could no longer be hidden
despite the excellent presentation made by Sundeep Khanna,
additional secretary in the ministry of social justice and
empowerment. Khanna convincingly explained administrative policies,
including the framework for defining STs, parliamentary and
legislative committees and the objectives of the new schemes to
combat discrimination against the SCs and the STs. As the country
rapporteur of the CERD Committee on India stated, had India’s
presentation begun with Khanna, the dialogue would have been more
constructive and meaningful.
India started its presentation explaining how caste discrimination
is not synonymous with racial discrimination. There was no
disagreement from the experts that “caste” was not equivalent to
“race,” but certainly, any form of discrimination on the basis 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 belonged
in case of an intercaste marriage, Prof. 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
the children of inter-caste marriages belong to “no caste,” how will
the government implement its affirmative action programmes? The
Supreme Court has given numerous judgments affirming that in case of
inter-caste marriages, children will get the benefit of reservation
only if the father belonged to the STs and SCs. The Indian
delegation was not even willing to accept patriarchy as the
determinant factor for identifying caste or tribe! Caste and
untouchability may not be major factors in metropolitan cities, 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.” The Indian delegation even refused to recognise the STs as
“distinct groups.” India’s description of “genealogical demonstrable
characteristics” to define descent is debatable, but to suggest that
tribals are not “distinct groups” goes against common sense. For
this one does not need to know the Puranas, the Upanishads or the
Bhagvad Gita — as quoted by Mario Jorge Yutzis, a CERD Committee
expert and professor of philosophical anthropology from Argentina,
to dismiss India’s rigid explanations — but elementary knowledge of
how the British brought the tribes of the Northeast under its
control will give an indication of the distinctive characteristics
of the tribal groups. Not surprisingly, the UN CERD Committee
recommended that India “formally recognise its tribal peoples as
distinct groups entitled to special protection under national and
international law, including the Convention and provide information
on the criteria used for determining the membership 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 being combated, and not
a lecture on sociology.
In
its report, India highlighted that it tries to eliminate “barriers
between races,” and “discourage anything which tends to strengthen
racial division.” Then how does one explain the naming of various
Army regiments 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 for chemical, fertilisers and
steel, Mr Ram Vilas Paswan, demanded that a “Dalit Regiment” should
be included in the Common Minimum Programme of the United
Progressive Alliance government.
The
UN CERD Committee made the following recommendations among others:
continued stigmatisation under the Habitual Offenders Act (1952)
should be addressed; recommendations of the Justice Jeevan Reddy
Committee to replace Armed Forces (Special Powers) Act “by a more
humane Act” should be implemented; efforts should be made to enforce
the Protection of Civil Rights Act (1955) and the Scheduled Castes
and Scheduled Tribes Prevention of Atrocities Act; reservation
policies should be enforced effectively; the right of ownership of
the members of tribal communities over the lands traditionally
occupied by them should be implemented; sections of the Andaman
Trunk Road that run through the Jarawa reserve should be closed as
per a Supreme Court judgment. It also said that the members of the
SCs and the STs who have converted to another religion should get
the benefits of affirmative action. No recommendation was made which
has not already been made by various national commissions and the
Parliamentary Committee on the Welfare of the Scheduled Castes and
Scheduled Tribes. As South African expert Patricia Nozipho January-Bardill
stated, she “failed to understand why, if India was truly committed
to social cohesion and eliminating bigotry and prejudice, 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 issue of
caste.
(The author is
Director, Asian Centre for Human Rights, New Delhi)
28 March 2007
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