Rajendra Kalidas Wimala Goonesekere

[Ed. Note: This is the first part of the working paper submitted by the author to the 53rd session of the U.N. Subcommission on the Promotion and Protection of Human Rights on June 14, 2001, on the topic of discrimination based on work and descent. Because of the importance of this paper for the campaign to eradicate caste discrimination, we will reproduce the entire document over the course of several issues of Human Rights SOLIDARITY.]

Introduction

(1) At its 52nd meeting, the Subcommission for the Promotion and Protection of Human Rights in Resolution 2000/4 declared that discrimination based on work and descent is a form of discrimination prohibited by international human rights law and decided to entrust Mr. Rajendra Kalidas Wimala Goonesekere with the task of preparing, without financial implications, a working paper on the topic of discrimination based on work and descent in order:

(a) To identify communities in which discrimination based on occupation and descent continues to be experienced in practice;

(b) To examine existing constitutional, legislative and administrative measures for the abolition of such discrimination; and

(c) To make any further concrete recommendations and proposals for the effective elimination of such discrimination as may be appropriate in the light of such examination.

The present report is submitted in accordance with that decision.

(2) The Universal Declaration of Human Rights states, "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood" (Article 1). In Article 2, it is expressly stated that everyone is entitled to all the rights and freedoms without distinction of any kind, "such as race, . . . national or social origin, property, birth or other status."

(3) Like other forms of discrimination, therefore, any distinction, exclusion, restriction or preference based on work and descent which has the purpose or effect of nullifying or impeding the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms contravenes the spirit and letter of international human rights law.

(4) The International Covenant on Civil and Political Rights recognises that all persons are entitled to the equal protection of the law "without any discrimination" (Article 26). The International Convention on the Elimination of All Forms of Racial Discrimination specifically prohibits discrimination based on "descent" which the Committee on the Elimination of Racial Discrimination (CERD) has interpreted to mean not solely race but tribal or caste distinctions as well. In its General Recommendation XIV, CERD stated that, "in seeking to determine whether an action has an effect contrary to the convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent or national or ethnic origin."

(5) The International Covenant on Economic, Social and Cultural Rights recognises the right of everyone "to gain his living by work which he freely chooses or accepts" (Article 6, Para. 1).

(6) The International Labour Organisation Discrimination (Employment and Occupation) Convention of 1958 (No. 111) calls on States to "eliminate discrimination based on race, . . . national extraction or social origin" in the matter of employment or occupation. The United Nations Educational, Scientific and Cultural Organisation Convention against Discrimination in Education of 1960 asserts the principle of non-discrimination in education based on "race, . . . national or social origin, economic condition or birth."

(7) Discrimination based on work and descent is a long-standing practice in many societies throughout the world and affects a large portion of the world's population. Discrimination based on descent manifests itself most notably in caste- (or tribe-) based distinctions. These distinctions, determined by birth, result in serious violations across the full spectrum of civil, cultural, economic, political and social rights. Likewise, the nature of a person's work or occupation is often the reason for, or a result of, discrimination against the person. Persons who perform the least desirable jobs in a society are often victims of double discrimination, suffering first from the nature of the work they must perform and suffering again by the denial of their rights because they perform work that is unacceptable. In most cases, a person's descent determines or is intimately connected with the type of work they are afforded in the society. Victims of discrimination based on descent are singled out, not because of a difference in physical appearance or race, but rather by their membership in an endogamous social group that has been isolated socially and occupationally from other groups in society.

I. Communities Where Discrimination Based on Work and Descent Is Experienced

(8) Instances of discrimination based on work and descent have been identified in many different social and cultural contexts. The manifestations of such discrimination commonly include prohibitions on intermarriage between socially or occupationally defined groups; the physical segregation of communities; restrictions upon access to resources, including land, water and other means of production; social prohibitions regarding physical contact, such as sharing food or utensils; restrictions on access to education or segregation in educational facilities; and restrictions on access to religious buildings and restrictions on participation in religious ceremonies. The most widespread discrimination on the basis of work and descent occurs in societies in which at least a portion of the population is influenced by the tradition of caste, including the Asian countries of Bangladesh, India, Nepal, Pakistan and Sri Lanka.

A. India

"We must say that the National Human Rights Commission as well as the U.N. General Assembly should recognise that caste, as an institution itself, is a source of gross violations of human rights. Therefore, it must be treated on a par with the existence and operation of racism and apartheid. The caste system and the equally obnoxious practice of untouchability must be taken seriously by the Indian and international communities and administrative bodies." ÐInterim Observations and Recommendations of the Jury of the National Public Hearing on Dalit Human Rights Violations, Chennai, April 2000.

(9) In 1937, Dr. B. R. Ambedkar, a learned and respected Indian leader and advocate of the rights of Untouchables - or Dalits, as he called them - and himself an Untouchable, announced that he had made a momentous decision to renounce the religion of his birth, Hinduism, because he traced a great social injustice in contemporary Indian societyÐnamely, the caste systemÐto Hindu scriptures. Mahatma Gandhi, the spiritual leader of India, who was moved by the plight of the Untouchables, was himself not prepared to blame Hinduism for the appalling discrimination against millions of Indians by other Indians. In a response to Dr. Ambedkar, the Mahatma said:

"Caste has nothing to do with religion. It is a custom whose origin I do not know and do not need to know for the satisfaction of my spiritual hunger. . . . The law of Varna teaches us that each one of us earns our bread by following the ancestral calling. It defines not our rights but our duties. It also follows that there is no calling too low and none too high. All are good, lawful and absolutely equal in status."

(10) The Mandal Commission on the reservation of government jobs for Scheduled Tribes and Other Backward Classes in its 1980 report said of the caste system: "The social ranks and their respective duties, ordained by God for humanity, were intended to remain fixed and unmoveable. Like the limbs of the body, they cannot properly exchange either their place or function."

(11) The debate as to whether caste is or is not derived from Hindu scriptures need not detain us because 85 percent of India's one billion people remain Hindu. Only a few million followed Dr. Ambedkar and became Buddhists. Lesser numbers became converts to Christianity and Islam. India is a stratified or compartmental society not based on class but on descent or occupation. It has been so for many thousands of years. Dr. Ambedkar, as the minister of law and chairman of the drafting committee of the Constituent Assembly, was responsible for the many provisions in the Constitution intended to fulfil the promise in the preamble to secure to all citizens justice and equality of status and opportunity.

(12) As well as Untouchables, there are other underprivileged segments of Indian society which are grouped as Scheduled Tribes and Other Backward Classes, and they number many millions of people. Scheduled Tribes are distinguished by tribal characteristics, such as social, religious, linguistic and cultural distinctions. In addition, they are concentrated in certain geographical areas. While they are officially recognised as deserving of special treatment, the policy towards them is to effect improvements in their conditions while at the same time preserving their distinctiveness and giving them a measure of autonomy. In the case of Other Backward Classes, there is the initial difficulty of identifying the persons who fit the description.

(13) They appear to include all religious minorities who are economically poor and lacking in educational opportunities. The Mandal Commission report identified 3,743 subcastes as being socially and educationally backward and found that Other Backward Classes constituted 52 percent of the population. That was in addition to the Scheduled Castes/Tribes, which constituted a separate category of 22.5 percent of the population. Dalits estimate that they constitute 19 percent of the population, or 160 million people. The present study does not include Scheduled Tribes and Other Backward Classes as the discrimination against them, where it exists, cannot strictly be said to be based on work or descent.

(14) Those who suffer discrimination based on descent or work have received different names. Official terms were "Untouchables," "depressed classes" or "scheduled castes." For Gandhi, they were "Harijans" or "people of God" rather than "Untouchables." Today they are known as Dalits, or "oppressed people" or "broken people."

(15) Hindu society recognises a caste hierarchy of four classes or varnas: Brahmins (priests and scholars), Kshathriyas (rulers and soldiers), Vaishyas (merchants and farmers) and Sudras (servant class). The Sudras, the lowest caste, are seen as persons who exist to serve the higher castes or "twice born." Servility is their badge and with it a loss of dignity. According to some researchers, there were upper Sudras and lower Sudras depending on the work they performed. Artisans, carpenters, barbers, washermen and the like belonged to the former while those engaged in unclean work, such as sweepers, scavengers, cobblers, cremation workers, hide and leather workers, agricultural labourers and toddy tappers, belonged to the latter. Those considered to be at the lower end of the Sudras are not, in fact, Sudras but are Untouchables who are outside the caste system or "outcastes," or they constitute a distinct fifth caste.

(16) In the mind of the upper castes, Untouchables are polluted by their work and are polluting to others by contact, which must, therefore, be avoided at all costs. A corollary is pointed out by the Mandal Commission: "The real triumph of the caste system lies not in upholding the supremacy of the Brahmin but in conditioning the consciousness of the lower castes in accepting their inferior status in the ritual hierarchy as part of the natural order of things."

(17) Untouchability conveys "a sense of impurity and defilement. It implies certain socio-religious disabilities. It includes customs, practices sanctioned by the rigid Indian caste system whereby persons belonging to the Scheduled Castes were debarred from entering Hindu temples, public places, streets, public conveyances, eating places, educational institutions, etc." There are other disadvantagesÐ segregation in colonies in the village, the denial of land rights, low wages for manual work, the denial of access to services, e.g., by barbers and washermen, to health care and education. Untouchables belong to castes which have the lowest ritual standing and often the most depressed economic condition.

(18) In the course of time, occupations may have changed, and many Dalits are now engaged in agriculture as landless labourers as this activity has been opened to all. But this is not so in the case of other occupations to which access is not permitted by caste traditions. It is not merely the indignities heaped on Dalits that make them an oppressed people, however. Because of the social ostracism and economic deprivation they suffer, they often fall prey to the most serious forms of persecution in their society, including killings, mutilation, rape, arson, destruction of property and other forms of violence (sometimes regrettably by state agents) when they assert their rights.

(19) The government of India has taken several steps to prohibit the practice of untouchability. First, and most importantly, the government has recognised the existence of the problem. Second, the government has made determined efforts to deal with it. The Constitution of India in its Bill of Rights (Part III), besides guaranteeing to all citizens basic civil and political rights and fundamental freedoms, has special provisions that are directed at the practice of caste discrimination:

(a) Article 15 prohibits subjection to a disadvantage based on caste with respect to access to shops, public restaurants, etc., or to the use of wells, roads and public places maintained out of state funds;

(b) Article 16 prohibits discrimination on the grounds of caste or descent in respect of employment under the State;

(c) Article 17 abolishes untouchability and prohibits its practice in any form;

(d) Article 23 prohibits forced labour and discrimination on the grounds of caste when imposing compulsory service for public purposes;

(e) Article 29(2) prohibits denying admission to any educational institution on the grounds of caste;

(f) There are also positive duties imposed on the State to redress imbalances due to past injustices against Untouchables. Article 15(4) permits the State to make special provisions for the advancement of any socially and educationally backward class of citizens, including Scheduled Castes;

(g) Article 16(4) permits the State to reserve appointments for members of backward classes not adequately represented in the state services.

(20) Articles 15(4) and 16(4) recognise beneficial discrimination or protective/ compensatory/preferential discrimination, or simply affirmative action. Indeed, in the governance of the country, the State is enjoined by a directive principle of state policy (Article 46) to "promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation." But it is important to note that in the implementation of these provisions the efficiency of the administration is not to be sacrificed (Article 355).

(21) Other provisions in the Constitution addressing caste discrimination are:

(a) Article 325 which prohibits disfranchisement on the grounds of caste;

(b) Articles 330 and 333 which provide for the reservation of seats for members of Scheduled Castes and Scheduled Tribes in Union and state legislatures according to the Scheduled Caste population in each constituency;

(c) Article 338 which mandates the appointment of a National Commission for Scheduled Castes and Scheduled Tribes. The commission has been appointed and investigates and monitors all matters relating to the safeguards provided for Scheduled Castes;

(d) Article 341 which makes possible the legal identification of Scheduled Castes, or Untouchables, by means of lists prepared for each state and union territory. The list, when published by the president, is final as to the castes or groups within castes deemed to be Scheduled Castes. The current state and union lists, when totalled, contain more than 1,000 castes but, given the fact that the same castes appear in different state lists, the estimate given of 76 Scheduled Castes is probably correct.

(22) To bolster the constitutional provisions, India has passed several laws:

(a) The Protection of Civil Rights (Anti-Untouchability) Act of 1955, strengthened by an amendment in 1973, punishes offences that amount to the observance of untouchability, such as prohibiting entry to temples or insulting someone on the basis of his or her caste;

(b) The Bonded Labour (Abolition) Act of 1976 aims at the release of labourers (usually Dalits) who work in slave-like conditions in order to pay off a debt due to a high caste employer by cancelling any outstanding debt and prohibiting the creation of new bondage agreements;

(c) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 is an important law that was needed because of the high incidence of recurrent acts of violence against helpless Dalits throughout the country. Eighteen atrocities are listed, including violence against women, dispossession of a Dalit of his land, mischief by fire and the destruction of property. Penal code offences carrying a punishment of 10 years' imprisonment if committed against a member of a Scheduled Caste are punishable by imprisonment for life. The offences are cognisable and non-bailable. There are special courts to provide speedy trials and special prosecutors to conduct cases. In 1999, rules were enacted under the act to strengthen the investigation process and to make provisions for the payment of compensation to victims;

(d) The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act of 1993 is a special law that was considered necessary to deal with the most distressing discrimination based on work and descent. There are an estimated 800,000 people, mainly women, who are engaged in cleaning dry latrines using the most primitive methods. The law itself describes this as a "dehumanising practice" and is intended to make it obligatory to convert dry latrines into water-seal latrines. To implement the act, the National Commission for Safai Karamcharis was appointed. In its 1997 report, the commission found that manual scavengers are "totally cut off from the mainstream of progress and are still subjected to the worst kind of oppression and indignities." What is more pathetic is the fact that manual scavenging is still largely a hereditary occupation. Safai Karamcharis are no doubt the most oppressed and disadvantaged section of the population. There is unfortunately evidence that manual scavengers are considered untouchable by other Untouchables;

(e) Land reform laws to redistribute land to the landless.

(23) It is an impressive list of actions that have been taken by the government of India. That improvements have taken place cannot be doubted and credit should probably go to the National Human Rights Commission, the National Commission for Women, the Scheduled Castes and Scheduled Tribes Commission and the National Commission for Safai Karamcharis. A micro-level study in the states of Karnataka, Gujarat, Andra Pradesh and Orissa has led a scholar to conclude that:

"Like other institutions, caste- and untouchability-based discrimination in Indian society has undergone change. The practice of untouchability and the resultant discrimination has been reduced in the public sphere, like panchyat [village] offices, schools, the use of public roads, public transport, health and medical services, the services of shops (for buying goods) and services rendered by the tailor, barber, eating places and tea shops in large villages and urban areas. But even here discrimination in various subtle forms prevail."

(24) If in urban areas it is more the hidden or invisible discrimination that a Dalit would encounter, in rural areas where three-fourths of the Dalits live, open discrimination in all its forms is fairly widespread. The overall picture is depressing. In school education, there is a marked literacy gap between the Scheduled Castes and the rest of the population. It is reported that reserved quotas in universities are not filled, especially in the technical and professional courses. There is reportedly poor representation of Scheduled Castes in teaching posts and caste clustering. There has been an inadequate distribution of lands among the Scheduled Castes promised under the Ceiling of Land Acts. The shame of bonded labour remains for millions, including a large number of children. The hideous occupation of manual scavenging continues except in a few states. If reports are to be believed, no real effort has been made to improve the conditions of work for these wretched people who, out of sheer necessity, find that it is their lot to clean dry latrines.

(25) The reservation of quotas in government employment and education has run into the vexed problem of having to determine whether caste alone should be the test or whether caste should be combined with economic need. Quota reservations in state employment are being filled in lower job categories, such as sweepers, peons and clerks. In the absence of quotas, there is hardly any representation in the defence forces, scientific establishment and judiciary. The Scheduled Castes have not benefited from the economic progress that has been made in the country in the 50 years since independence because there has been no policy in the allocation of resources. In the rapidly growing private sector, there does not seem to be any opportunity for advancement for members of Scheduled Castes.

(26) At the same time, atrocities are being committed almost daily against Dalits, and they go unpunished. These have been researched and documented, mainly by Dalit organisations, in several publications in horrifying detail. The laws are there, but there is a clear lack of will on the part of law enforcement officers to take action owing to caste prejudice on their part or deference shown to higher caste perpetrators. The Supreme Court in State of Kerala vs. Appu Balu said: "More than 75 percent of the cases under the (SC/ST) act are ending in acquittal at all levels." What is frightening is that the atrocities committedÐmurder, rape, mutilation, arson, etc.Ðare not only isolated acts but could even be acts of mass savagery committed by militia groups employed by higher castes. The inability of the police and courts to deal with these crimes has had a backlash effect on young Dalits who also themselves have formed armed groups or Naxalites.

(27) The present situation in India could not have been better expressed than in the words of the National Scheduled Caste and Scheduled Tribes Commission:

"The task ahead is clearly, therefore, to focus on the basic needs and requirements of SCs/STs and to give them the social dignity and the economic capability to come at par with other sections of society and to become part of the mainstream which had been the charter visualised by the constitutional makers 50 years ago. Such a strategy would not only control the feelings of alienation, frustration and rising military and civil strife but would also make the SCs/STs active partners in nation-building."