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Ending Caste Discrimination in India: Human Rights and the Responsibility To Protect (R2P) Individuals and Groups From Discrimination at the Domestic and International Levels

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Abstract

This Article addresses the issues and problems relating to caste from varying disciplinary perspectives, including from a human rights perspective in India. It examines the sociological context of caste to develop an understanding of the practice and its origins.This Article also assesses the particular impact of caste on the lives of the lower class members of contemporary Indian society. Furthermore, this Article investigates the legal issues relating to caste in India to determine what can be done to limit its effect. In addition to considering the domestic situation, this Article analyzes the international human rights regime concerning caste to determine what steps have already been taken but also what can be done at the international level to drive the struggle against caste discrimination.This Article draws two conclusions that help to clarify the role of caste issues in Indian society and human rights law. First, India is bound by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the convention bears directly on caste issues despite India’s reluctance to accept this. This Article evaluates the jurisprudence on this conclusion to determine how caste is affected by anti-discrimination issues. Second, this Article concludes that while various religions have supported the caste system, the problem is a social phenomenon and is not intrinsically rooted in religious practices. This Article addresses the societal role and impact of the caste system in order to discuss the caste system in general. By assessing the cumulative effect of international and domestic legal protections for low caste and Dalit peoples, this Article offers insight into the limitations of a purely rights-based approach to promoting equality. It argues that, at the international level, the effectiveness of human rights bodies has been severely limited by problematic definitions of caste and caste discrimination, coupled with an unwillingness to openly discuss the issue. Domestically, progressive legal stances and objectives at the national level have been undercut by drastic problems of enforceability and little political will to actively push for change to occur. Without the genuine desire to combat caste discrimination at every level, it is unlikely that this blight on India’s human rights record will disappear. Caste and caste divisions have shown resilience and an ability to evolve and adjust along with the legal mechanisms and bodies that are supposed to eliminate it. This is a system with centuries of history — as well as cultural and sociological development — behind it. Caste discrimination is such a deeply rooted problem that legal changes and overt normative adjustments have simply not been enough to eliminate it.Finally, this Article concludes that progress to end caste discrimination has been insufficient, and therefore a greater commitment is needed at all levels to end caste discrimination. The real challenge is to understand what has prevented the legal reforms and creation of rights from being more effective. Solutions are offered throughout this Article so that real change can occur for the tens of millions of low caste and Dalit people that suffer because of this type of discrimination.
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ENDING CASTE DISCRIMINATION IN INDIA:
HUMAN RIGHTS AND THE RESPONSIBILITY TO
PROTECT (R2P) INDIVIDUALS AND GROUPS
FROM DISCRIMINATION AT THE DOMESTIC
AND INTERNATIONAL LEVELS
J
EREMY
S
ARKIN
*
AND
M
ARK
K
OENIG
I. I
NTRODUCTION
Dealing with caste discrimination,
1
wherein a group of people
are given a “specific social rank, . . . linked to one or more tradi-
tional occupations[,]”
2
remains one of the most significant human
rights challenges facing the world today. Perhaps no country
understands the difficulty of the fight to end caste discrimination
more than India, which, even after decades of democracy, has yet
to effectively end the practice. Despite efforts to end caste discrim-
ination through international and domestic measures, more than
165 million people in India alone still suffer discrimination and
various types of degrading treatment because of their caste associa-
tions.
3
In contemporary India, the social structure continues to be
* Admitted to practice, State of New York and South Africa. LL.D. 1995, University
of the Western Cape, Cape Town; LL.M. 1988, Harvard Law School; B.A., LL.B., University
of Natal (Durban).
Independent Researcher. MALD 2008, Fletcher School Tufts; B.A. 2004, The
Johns Hopkins University.
1. Both the terms “caste” and “class” are used in the Indian Constitution. This has
given rise to some confusion and much debate about what the terms mean in the constitu-
tional sense. For general background on the term “caste,” see generally O
LIVER
C. C
OX
,
C
ASTE
, C
LASS
, & R
ACE
: A S
TUDY IN
S
OCIAL
D
YNAMICS
(1948) and 1 S
OURCES OF
I
NDIAN
T
RA-
DITION
: F
ROM THE
B
EGINNINGS TO
1800 (Ainslie Embree ed., 2d ed. 1988).
2. Karla Hoff & Priyanka Pandey, Belief Systems and Durable Inequalities: An Experimen-
tal Investigation of Indian Caste 4 (World Bank Policy Research Working Paper No. 3351,
2004).
3. This number is extremely conservative as it only refers to untouchables. The
number would increase by tens of millions if low caste victims of abuse who are not
untouchables are included. It has also been noted that if those who have converted to
other religions including Buddhism, Sikhism, Christianity, and Islam but continue to suffer
exclusion and discrimination are added the number increases by an additional twenty-five
million. Vimal Thorat & Sandhya Gokhale, The Women’s Reservation Bill, C
OMBAT
L
AW
,
Nov.-Dec. 2005, at 34; see also Vatsala Vedantam, Still Untouchable, C
HRISTIAN
C
ENTURY
, June
26, 2002, at 25; 19 C
TR
.
FOR
H
UMAN
R
IGHTS
& G
LOBAL
J
USTICE
& H
UMAN
R
IGHTS
W
ATCH
,
H
IDDEN
A
PARTHEID
: C
ASTE
D
ISCRIMINATION
A
GAINST
I
NDIA
S
“U
NTOUCHABLES
” 2 (2007)
[hereinafter H
IDDEN
A
PARTHEID
].
541
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542 The Geo. Wash. Int’l L. Rev. [Vol. 41
described as “entirely based on the caste system. This caste system
is not only based on structural inequalities between the high caste
and low caste ‘untouchables’ but also involves social isolation and
exclusion from participation in social, political and economic
processes and development of society.”
4
Caste discrimination sees its victims excluded from using “village
wells, temples, and tea shops, forced to subordinate themselves
before upper caste neighbors, discriminated against in land and
housing allocation, and prevented from participating in local gov-
ernment institutions.”
5
In 2007, the U.N. Committee on the Elimi-
nation of Racial Discrimination (CERD) stated that it had “reports
of arbitrary arrest, torture and extrajudicial killings of members of
scheduled castes and scheduled tribes by the police, and about the
frequent failure to protect these groups against acts of communal
violence.”
6
In just a two year period, from 1994 to 1996, almost
100,000 incidents of abuse committed against lower caste people
were reported to police in India.
7
Even this vast number severely
under-represents the actual levels of discrimination.
8
Victims fre-
quently fail to register formal complaints out of fear of retaliation,
blatant police bias, or a lack of understanding regarding their
rights.
9
The lives of those affected are often devastated by this dis-
crimination. Dalits
10
and other low caste people, especially
4. Thorat & Gokhale, supra note 3, at 34.
R
5. Clifford Bob, “Dalit Rights are Human Rights”: Caste Discrimination, International
Activism, and the Construction of a New Human Rights Issue, 29 H
UM
. R
TS
. Q. 167, 173 (2007).
6. U.N. Comm. on the Elimination of Racial Discrimination [CERD], Consideration of
Reports Submitted by States Parties Under Art. 9 of the Convention: Concluding Observations of
CERD: India, ¶ 14, U.N. Doc. CERD/C/IND/CO/19 (May 5, 2007) [hereinafter Concluding
Observations of CERD: India].
7. H
UMAN
R
IGHTS
W
ATCH
, B
ROKEN
P
EOPLE
: C
ASTE
V
IOLENCE
A
GAINST
I
NDIA
S
“U
NTOUCHABLES
” 8 (1999) [hereinafter B
ROKEN
P
EOPLE
].
8. See generally Ashwini Deshpande, Does Caste Still Define Disparity? A Look at Inequality
in Kerala, India, 90 A
M
. E
CON
. R
EV
. 322, 325 (2002) (finding that cross-tabulations on food
expenditure, clothing expenditure, land-holding, and education levels of heads of house-
hold indicate substantial inter-caste disparity between the former lower castes and upper
castes in Kerala, India).
9. See, e.g., William Eisenman, Comment, Eliminating Discriminatory Traditions Against
Dalits: The Local Need for International Capacity-Building of the Indian Criminal Justice System, 17
E
MORY
I
NT
L
L. R
EV
. 133, 139, 161 (2003).
10. Dalit is the name commonly used for the group of people also known as
“untouchables.” The word “Dalit” means “broken people” and is used to refer to the peo-
ple in South Asia who do not have a caste. They rest below the caste system and are consid-
ered ritually impure. In the most traditional places, even today, high caste people will not
touch Dalits, eat from the same plates, or drink water from the same sources. Dalit people
have been forced into bonded labor or to do the most distasteful jobs, such as removing
carcasses and cleaning cremation sites for hundreds of years.
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2010] Ending Caste Discrimination in India 543
women,
11
have been prevented from standing as candidates in elec-
tions,
12
denied access to land, excluded from schooling,
13
forced to
work in the lowest level jobs,
14
and continue to suffer from higher
levels of poverty than other groups.
15
The CERD noted that “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.”
16
This discrimination is not at all confined to India.
17
Approxi-
mately ninety million additional untouchables are believed to suf-
fer these abuses in other Asian countries including Japan,
18
Pakistan, Bangladesh, Nepal, and Sri Lanka.
19
The practice also
occurs elsewhere in the world including Africa,
20
Europe, North
America, and many places where migrants from South Asia have
settled.
21
While these staggering figures suggest that caste discrimi-
nation should be a primary focus of the international human rights
movement and the Indian government, where most caste discrimi-
nation occurs, the reality is quite different.
22
Despite efforts in
India to end caste discrimination through the creation of legal
equality, such reforms have not been supported by the political will
11. See also Sharmila Rege, A Dalit Feminist Standpoint, in I
SSUES IN
C
ONTEMPORARY
I
NDIAN
F
EMINISM
: G
ENDER AND
C
ASTE
90 (Anupama Rao ed., 2003).
12. See Concluding Observations of CERD: India, supra note 6, ¶ 17.
R
13. See Jean Dreze & Geeta Kingdon, School Participation in Rural India, 5 R
EV
. D
EV
.
E
CON
. 1, 4 (2001); Anupreeta Das, India’s Lower Castes can now go to Private Schools, C
HRIS-
TIAN
S
CIENCE
M
ONITOR
, Feb. 13, 2006, available at http://www.csmonitor.com/2006/0213/
p04s01-wosc.html.
14. See Sharit K. Bhowmik, The Labour Movement in India: Present Problems and Future
Perspectives, 59 I
NDIAN
J. S
OC
. W
ORK
147, 161-62 (1998).
15. See Ira N. Gang et al., Caste, Ethnicity and Poverty in Rural India 2-3 (Institute for
Study of Labor, Discussion Paper No. 629, 2002). This paper reported on a constitutional
amendment obligating private schools, colleges, and professional training institutes operat-
ing without government funding to give more than one-quarter of their places to the
“untouchables” and other socially and economically disadvantaged groups.
16. Concluding Observations of CERD: India, supra note 6, ¶ 13.
R
17. See H
UMAN
R
IGHTS
W
ATCH
, C
ASTE
D
ISCRIMINATION
: A G
LOBAL
C
ONCERN
2 (2001).
18. See Ian Neary, Burakumin in Contemporary Japan, in J
APAN
S
M
INORITIES
: T
HE
I
LLU-
SION OF
H
OMOGENEITY
50, 55 (Michael Weiner ed., 1997).
19. See N
IREKA
W
EERATUNGE
, A
SPECTS OF
E
THNICITY AND
G
ENDER
A
MONG THE
R
ODI OF
S
RI
L
ANKA
77 (1988); Oddvar Hollup, Caste Identity and Cultural Continuity Among Tamil
Plantation Workers in Sri Lanka, 28 J. A
SIAN
& A
FR
. S
TUD
. 67, 79-81 (1993).
20. See, e.g., V
ICTOR
D
IKE
, T
HE
C
ASTE
S
YSTEM IN
N
IGERIA
, D
EMOCRATIZATION AND
C
UL-
TURE
: S
OCIO
-
POLITICAL AND
C
IVIL
R
IGHTS
I
MPLICATIONS
(1999), available at http://www.afbis.
com/analysis/caste.htm.
21. See R
ONALDO
M
UNCK
, G
LOBALIZATION AND
S
OCIAL
E
XCLUSION
: A T
RANSFORMATION-
ALIST
P
ERSPECTIVE
112 (2005); Bob, supra note 5, at 169.
R
22. See generally C
ASTE
T
ODAY
(C.J. Fuller ed., 1996).
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544 The Geo. Wash. Int’l L. Rev. [Vol. 41
to protect potential victims and effectively punish those carrying
out abuses.
23
At the international level, caste discrimination and the issue of
untouchability
24
were not on the human rights agenda until the
late 1990s.
25
Since then, even though the issue has been raised,
the international community has failed to review and assess the
progress of the Indian government and others in addressing these
abuses.
26
The cumulative effect of these shortcomings has been
the creation of laws and legal protections that appear to be suffi-
cient on paper, but do little in reality to protect most low caste and
Dalit people in India.
Generally speaking, low caste people remain afraid of retaliation
or increased abuse if they complain or break the traditional rules.
27
In many places, the continuation of past atrocities and the lack of
change in attitudes and understandings have meant that many of
the victims of discrimination still believe in the traditions that
oppress them.
28
Progressive dialogue and ideas at the national
level usually fail to reach most of India. As is the case with many
other anti-discrimination laws and movements throughout the
world, measures in India seem to exist only to assuage the con-
sciences of lawmakers and the elite who never actually suffer the
injustices addressed in the legislation. There remains little politi-
cal will to go further than simply creating the fa¸cade of human
rights compliance.
This Article addresses the issues and problems relating to caste
from varying disciplinary perspectives, including from a human
rights perspective in India. It examines the sociological context of
caste to develop an understanding of the practice and its origins.
This Article also assesses the impact of caste on the lives of particu-
larly the lower class members of contemporary Indian society. Fur-
thermore, this Article investigates the legal issues relating to caste
in India to determine what can be done to limit its effect. In addi-
tion to considering the domestic situation, this Article analyzes the
23. See Sukhadeo Thorat, Oppression and Denial: Dalit Discrimination in the 1990s, E
CON
.
P
OL
. W
KLY
., Feb. 9, 2002, at 572, 574-75.
24. See O
LIVER
M
ENDELSOHN
& M
ARIKA
V
ICZIANY
, T
HE
U
NTOUCHABLES
: S
UBORDINATION
,
P
OVERTY AND THE
S
TATE IN
M
ODERN
I
NDIA
1-5 (1998).
25. See Bob, supra note 5, at 168.
R
26. See generally D
AVID
K
EANE
, C
ASTE
-B
ASED
D
ISCRIMINATION IN
I
NTERNATIONAL
H
UMAN
R
IGHTS
L
AW
(2007).
27. See, e.g., Subhadra Mitra Channa, Metaphors of Race and Caste-Based Discrimination
Against Dalits and Dalit Women in India, in R
ESISTING
R
ACISM AND
X
ENOPHOBIA
49, 49-51
(Faye Harrison ed., 2005).
28. See T
AYA
Z
INKIN
, C
ASTE
T
ODAY
60-61 (1962).
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2010] Ending Caste Discrimination in India 545
international human rights regime concerning caste to determine
what steps have already been taken but also what can be done at
the international level to drive the struggle against caste
discrimination.
This Article draws two conclusions that help to clarify the role of
caste issues in Indian society and human rights law. First, India is
bound by the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD),
29
and the convention
bears directly on caste issues despite India’s reluctance to accept
this. This Article evaluates the jurisprudence on this conclusion to
determine how caste is affected by anti-discrimination issues. Sec-
ond, this Article concludes that while various religions have sup-
ported the caste system, the problem is a social phenomenon and
is not intrinsically rooted in religious practices. This Article
addresses the societal role and impact of the caste system in order
to discuss the caste system in general.
By assessing the cumulative effect of international and domestic
legal protections for low caste and Dalit peoples, this Article offers
insight into the limitations of a purely rights-based approach to
promoting equality. It argues that, at the international level, the
effectiveness of human rights bodies has been severely limited by
problematic definitions of caste and caste discrimination, coupled
with an unwillingness to openly discuss the issue.
30
Domestically,
progressive legal stances and objectives at the national level have
been undercut by drastic problems of enforceability and little polit-
ical will to actively push for change to occur. Without the genuine
desire to combat caste discrimination at every level, it is unlikely
that this blight on India’s human rights record will disappear.
Caste and caste divisions have shown resilience and an ability to
evolve and adjust along with the legal mechanisms and bodies that
are supposed to eliminate it.
31
This is a system with centuries of
historyas well as cultural and sociological developmentbehind
it. Caste discrimination is such a deeply rooted problem that legal
29. India signed the Convention on March 2, 1967 and ratified it on December 3,
1968. United Nations Treaty Collection, Status of the International Convention on the Elimina-
tion of All Forms of Racial Discrimination [ICERD], http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en (last visited Mar. 6, 2010).
30. See Andre Beteille, Caste in Contemporary India, in C
ASTE
T
ODAY
, supra note 22, at
R
150, 153.
31. See R
AJA
J
AYARAMAN
, C
ASTE AND
C
LASS
: D
YNAMICS OF
I
NEQUALITY IN
I
NDIAN
S
OCIETY
22 (1981).
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546 The Geo. Wash. Int’l L. Rev. [Vol. 41
changes and overt normative adjustments have simply not been
enough to eliminate it.
32
Finally, this Article concludes that progress to end caste discrimi-
nation has been insufficient, and therefore a greater commitment
is needed at all levels to end caste discrimination. The real chal-
lenge is to understand what has prevented the legal reforms and
creation of rights from being more effective. Solutions are offered
throughout this Article so that real change can occur for the tens
of millions of low caste and Dalit people that suffer because of this
type of discrimination.
II. U
NDERSTANDING
C
ASTE
D
IVISIONS
Over centuries of sociological development, the South Asian
caste system has created hierarchies and divisions between castes
on every level of interaction.
33
The caste system’s origins are
debated, yet its effects are indisputable.
34
While it was suggested in
1996 that “[c]aste is no longer an important agent of social place-
ment or control,”
35
ritually, politically, economically, and even
physically, the system divides and arranges peoples vertically
according to their caste associations. These divisions have led to
exploitation, inequality, and suffering for millions of the region’s
inhabitants. Low caste and Dalit people today are still segregated,
barred from using common resources such as wells, and prevented
from entering Hindu temples.
36
These large communities have
been subject to racial profiling and police brutality
37
and live every
day of their lives treated as second class citizens by individuals,
communities, and sometimes even their government.
38
The rea-
sons behind the continuation of these practices are not mono-
lithic, but they might be grouped into a few major categories. The
32. See Channa, supra note 27, at 51-52.
R
33. See A
RVIND
S
HARMA
, H
INDUISM AND
H
UMAN
R
IGHTS
: A C
ONCEPTUAL
A
PPROACH
51
(2003).
34. See generally S
USAN
B
AYLY
, 4 T
HE
N
EW
C
AMBRIDGE
H
ISTORY OF
I
NDIA
: C
ASTE
, S
OCIETY
AND
P
OLITICS IN
I
NDIA FROM THE
E
IGHTEENTH
C
ENTURY TO THE
M
ODERN
A
GE
(1999); J.H.
H
UTTON
, C
ASTE IN
I
NDIA
: I
TS
N
ATURE
, F
UNCTION
,
AND
O
RIGINS
(1969).
35. Barbara Harriss-White, India’s Socially Regulated Economy 9 (Working Paper No.
133, 2005), available at www3.qeh.ox.ac.uk/pdf/qehwp/qehwps133.pdf (quoting Andre
Beteille).
36. See, e.g., Channa, supra note 27, at 50.
R
37. See, e.g., Eisenman, supra note 9, at 137-39, 160-66.
R
38. See Kuldip Nayar, Facing Up to the Facts, in C
ASTE
, R
ACE AND
D
ISCRIMINATION
: D
IS-
COURSES IN THE
I
NTERNATIONAL
C
ONTEXT
172, 173 (Sukhadeo Thorat Umakant ed., 2004)
[hereinafter C
ASTE
, R
ACE AND
D
ISCRIMINATION
]; Shiv Visvanathan, The Race for Caste:
Prolegomena to the Durban Conference, in C
ASTE
, R
ACE AND
D
ISCRIMINATION
, supra, at 250, 259.
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2010] Ending Caste Discrimination in India 547
first reason for the continuation of these practices is a lasting reli-
ance on caste identifications inspired by society, politics, and the
system of reservations. Second, these practices continue due to
minimal relative improvement in the economic situations of most
low caste and Dalit peoples. Third, these practices continue
because of the persistence of discrimination among important gov-
ernment institutions, specifically among the police and the local
court systems.
There is no unified understanding of how the caste system
became the rigid social hierarchy based on birth that it is today.
39
Part of this confusion comes from the existence of two terms used
for caste, varna and jati.
40
They are often wrongly used as syno-
nyms. Varnas are broad divisions that come directly from the
Vedas.
41
There are four varnas: the Brahmins (priests), Ksyatriyas
(warriors), Vaisyas (farmers), and Shudras (laborer-artisans). A
fifth group, the Dalits or “untouchables,” are considered polluted
and impure and thus are considered to rest beneath the hierarchy
altogether.
42
These stratifications come from a creation myth in
which “a social order emerged at creation from the body of
Purusha, or primitive man: Brahmins from his head; Ksyatriyas
from his arms; Vaisyas from his thighs; and Shudras from his feet.
All members of Purusha’s body represented the necessary parts of
a functioning society.”
43
Within the Vedas, this myth suggests that
each member of a functioning society has duties and responsibili-
ties; the varnas serve to designate what role people should play in
society.
44
While the narrative origins of the basic varna divisions are clear,
the origins of the jatis are not as well-defined. The jatis are the
divisions that we understand as caste today. They are divisions
based on occupation, linguistic and geographic limitations, cus-
toms, and other sociological features that are manifested in strict
hierarchies existing at every level of society.
45
It is the origin of
these jatis that is not precisely understood. Some scholars specu-
39. See H
UTTON
, supra note 34, at 182.
R
40. While the terms are used to mean various castes, they are in fact much more
complex.
41. The Vedas are the basic spiritual texts of the Hindu faith.
42. See S
HARMA
, supra note 33, at 51.
R
43. Bina Hanchinamani, Human Rights Abuses of Dalits in India,H
UM
. R
TS
. B
RIEF
, Win-
ter 2001, at 15, 15.
44. See B
RIAN
K. S
MITH
, C
LASSIFYING THE
U
NIVERSE
: T
HE
A
NCIENT
I
NDIAN
V
ARNA
S
YSTEM
AND THE
O
RIGINS OF
C
ASTE
26 (1994).
45. See D
AVID
K
INSLEY
, H
INDUISM
: A C
ULTURAL
P
ERSPECTIVE
154 (1993).
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548 The Geo. Wash. Int’l L. Rev. [Vol. 41
late that the jatis reflect divisions of labor that existed among
India’s indigenous tribes. When the Indo-Aryans invaded India
around 1500 B.C.,
46
they took this system and combined it with
their concept of the varnas in order to subjugate the massive popu-
lation of India.
47
Other scholars suggest that Brahmins, the
priestly caste, manipulated society through their role as interpret-
ers of the Vedas in order to gain political power.
48
Other theories
involving economic class,
49
political positioning, and historical
developments exist,
50
but the exact origins of the system are not
fundamentally important to discuss eliminating this type of
discrimination.
Two points must, however, be noted. First, caste has been a soci-
etal development and is not a fundamental part of Hinduism. Sec-
ond, caste hierarchy is extremely complex and generally regionally
specific, although its effects are felt in many corners of the globe.
51
Members of one caste might be fairly high in the hierarchy in one
region and near the bottom in a different area. Thus, as some
have argued, any attempt to create one overall theory explaining
the development of caste will only lead to confusion.
52
These points seemingly contradict the intellectual tradition that
argues that the elimination of caste requires a disaggregation of
traditional Indian society or a decline in the influence of Hindu-
ism.
53
While many religious leaders continue to teach the continu-
ation of the caste system and discriminatory practices,
54
and
religion clearly has contributed to the perpetuation of the caste
system, the problem of caste discrimination is fundamentally a
problem of society and not of religion. Indeed, as Mahatma Gan-
dhi argued, “[c]aste has nothing to do with religion. It is a custom
46. See Hanchinamani, supra note 43, at 15-16.
R
47. See R
OSALIND
O’H
ANLON
, C
ASTE
, C
ONFLICT AND
I
DEOLOGY
: M
AHATMA
J
OTIRAO
P
HULE AND
L
OW
C
ASTE
P
ROTEST IN
N
INETEENTH
-C
ENTURY
W
ESTERN
I
NDIA
141 (1985).
48. See Hanchinamani, supra note 43, at 15-16.
R
49. See Vivek Chibber, From Class Compromise to Class Accommodation: Labor’s Incorpora-
tion into the Indian Political Economy, in S
OCIAL
M
OVEMENTS IN
I
NDIA
: P
OVERTY
, P
OWER AND
P
OLITICS
32 (Raka Ray & Mary Katzenstein eds., 2003).
50. See A
NDRE
B
ETEILLE
, C
ASTE
, C
LASS AND
P
OWER
: E
MERGING
P
ATTERNS OF
S
TRATIFICA-
TION IN A
T
ANJORE
V
ILLAGE
185-87 (1965); J
AYARAMAN
, supra note 31, at 20-26.
R
51. See supra notes 17-21 and accompanying text.
R
52. See Amit Desai, Book Review, 13 J. R
OYAL
A
NTHROPOLOGICAL
I
NST
. 750, 751 (2007)
(reviewing C
ASTE IN
Q
UESTION
: I
DENTITY OR
H
IERARCHY
? (Dipankar Gupta ed., 2004)).
53. For a more complete review of theories questioning the integral nature of caste in
Hinduism, see A
NDRE
B
ETEILLE
, E
QUALITY AND
U
NIVERSALITY
: E
SSAYS IN
S
OCIAL AND
P
OLITI-
CAL
T
HEORY
75-78 (2003).
54. See Bashaheb Ambedkar, A Radical Critique of Caste, in S
OCIAL AND
R
ELIGIOUS
R
EFORM
: T
HE
H
INDUS OF
B
RITISH
I
NDIA
189, 198 (Amiya Pisen ed., 2003).
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2010] Ending Caste Discrimination in India 549
whose origin I do not know and do not need to know for the satis-
faction of my spiritual hunger.”
55
Caste is essentially a social phenomenon and thus as society has
evolved, so has caste. While several theorists have proposed that
caste distinctions have slowly been replaced by class distinctions,
56
or that urbanization and democratization are ensuring that caste
slowly withers away,
57
most scholars have noted that “caste has
shown a remarkable capacity to adjust to new conditions and situa-
tions.”
58
Advances in the legal status and extension of benefits to
low caste citizens and Dalits have paradoxically managed both to
remove caste discrimination as an overt social norm in much of the
country and strengthen caste self-identification in Indian politics
today.
59
Many scholars have further noted the growth of the
exploitation of casteism by political parties and social groups for
the mobilization of support, but politics certainly is not the only
field where the importance of caste has been reaffirmed.
60
It is
important to note that despite changes and evolutions over the
years, caste has remained the fundamental social unit into which
Indians are born.
61
Caste identification also continues because of efforts to rectify
the inherent inequalities created by a caste system, namely the
extensive set of reservations and economic benefits set aside for the
scheduled and backward castes.
62
These reservations create clear
economic incentives for being a part of certain castes, as well as a
reason to rally a caste together to push for benefits being extended
to other groups.
63
In some cases, this type of competition between
55. M.K. Ghandi, A Rejoinder from M.K. Ghandi, in S
OCIAL AND
R
ELIGIOUS
R
EFORM
,
supra note 54, at 199, 200.
R
56. See B
ETEILLE
, supra note 50, at 225.
R
57. See Z
INKIN
, supra note 28, at 69.
R
58. J
AYARAMAN
, supra note 31, at 22.
R
59. See Beteille, supra note 30, at 153; Channa, supra note 27, at 51-52; J
AYARAMAN
,
R
supra note 31, at 30.
R
60. See Beteille, supra note 30, at 153; Channa, supra note 27, at 52-53; K
RISHNA
G
UPTA
,
R
S
OCIAL
E
QUALITY AND THE
I
NDIAN
C
ONSTITUTION
251 (1996); K.L. S
HARMA
, S
OCIAL
S
TRATIFI-
CATION IN
I
NDIA
: I
SSUES AND
T
HEMES
181 (1997); V. Suresh, The Dalit Movement in India, in 3
R
EGION
, R
ELIGION
, C
ASTE
, G
ENDER AND
C
ULTURE IN
C
ONTEMPORARY
I
NDIA
355, 385 (T.V.
Sathyamurthy ed., 1996).
61. See G
UPTA
, supra note 60, at 250.
R
62. On the origin of the term “backward castes,” see C
HRISTOPHE
J
AFFRELOT
, I
NDIA
S
S
ILENT
R
EVOLUTION
: T
HE
R
ISE OF THE
L
OWER
C
ASTES IN
N
ORTH
I
NDIA
214 (2003). This term
was not contained in the draft constitution, but was inserted in the final draft to ensure
that the equality provision did not undermine provisions on affirmative action. The exact
meaning of “backward” was not delineated.
63. See J
AYARAMAN
, supra note 31, at 22-23.
R
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550 The Geo. Wash. Int’l L. Rev. [Vol. 41
castes has led to outright “[i]nternecine caste warfare . . .”
64
At a
very minimum, the incentives to define oneself through caste keep
the system relevant in public life throughout India. The govern-
ment has largely played into this continued use of caste to apply for
reservations by making the requirements for affirmative action
plans reliant on a traditional and ethnologically based set of evi-
dence. Famously, the Indian government decided that low-caste
Hindus who convert to other religions may no longer be legally
considered for the benefits being extended to their caste groups.
65
This underlines the significance of traditional definitions to the
granting of concessions; in order to receive some benefits, one
must voluntarily choose to continue one’s association with the
same system that sanctions discrimination.
Problems caused by granting concessions to the disadvantaged
are tolerated because it is generally accepted that the low caste and
Dalit people must improve their economic position in order to
bring about a real end to discriminatory practices.
66
Unfortu-
nately, reservations and other concessions have had a minimal
impact. Most Dalit people are still landless agricultural laborers
today, just as they have been for centuries.
67
In general, the bene-
fits only reach those lower caste people who have already attained
an elite position in society through economics, politics, or educa-
tion.
68
Class in India developed largely along already existing caste
lines, and this remains the case as social and economic inequalities
have reinforced each other over decades of discrimination.
69
While identity and economics create an environment of discrimi-
nation and inequality, there are laws that should prevent discrimi-
natory action from taking place. At the very least, these laws
should result in punishment for those discriminating against low
caste and Dalit people. Yet, in reality, this has not been the case,
and anti-discrimination efforts have been impotent through poor
enforcement and a general lack of political will.
70
The police and the low level judiciary have been at the center of
the failure to prevent caste discrimination. Human Rights Watch
64. See G
UPTA
, supra note 60, at 289.
R
65. See Eisenman, supra note 9, at 150.
R
66. See J
AYARAMAN
, supra note 31, at 31.
R
67. See Martin Macwan, (UN) Touchables in Durban, in C
ASTE
, R
ACE AND
D
ISCRIMINA-
TION
, supra note 38, at 37.
R
68. See A
RVIND
S
HARMA
, R
ESERVATIONS AND
A
FFIRMATIVE
A
CTION
: M
ODELS OF
S
OCIAL
I
NTEGRATION IN
I
NDIA AND THE
U
NITED
S
TATES
158 (2005).
69. See G
UPTA
, supra note 60, at 17.
R
70. See Channa, supra note 27, at 52.
R
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2010] Ending Caste Discrimination in India 551
reported that in 1995, 90 to 95 percent of all cases of discrimina-
tion against scheduled castes resulted in non-punishment.
71
In
1992, Indian Supreme Court Justice Ramaswamy declared that
more than 75 percent of the cases brought to court over the Pre-
vention of Atrocities Act end in acquittal.
72
In addition, there are
many anecdotes of judges throwing out evidence from Dalits, or
even continuing the practice of “untouchability” themselves.
73
In order to deal with these shortcomings, India’s judiciary needs
to be specifically trained and sensitized to ensure that each mem-
ber of the judiciary has adequate understanding, commitment, and
capacity to deal with caste issues sufficiently.
74
Furthermore, the
government reservation system needs to be extended to the judici-
ary to ensure that there are low caste and Dalit judges and jurists
actively participating in the system.
75
The judiciary is not the sole institution that is guilty of perpetrat-
ing and allowing the discrimination to continue. The police have
also routinely demonstrated bias in various ways. The police dis-
criminate, for instance, by neglecting to record complaints from
low caste people.
76
It is often the police who commit the atrocities
and do so with impunity.
77
Discrimination is pervasive to the point
that national human rights bodies will not use any policeman
“below the rank of Director General” for their human rights inves-
tigations for fear of prejudiced investigations.
78
Some people have
argued that there is a more general crisis in policing India that
limits the capacity of the force to fight all types of crime.
79
The
combination of prejudiced police officers and an ineffective police
force have rendered anti-discrimination laws and ideals hollow at
the local level.
Police reform must continue in tandem with judicial reform.
Some have observed that the structure of the police force lacks
cohesion, and that each state is left largely to deal with its own
police force.
80
These individuals suggest the implementation of a
71. B
ROKEN
P
EOPLE
, supra note 7, at 192.
R
72. Eisenman, supra note 9, at 167.
R
73. See id. at 167-68.
74. See id. at 169, 178-81.
75. See K
EANE
, supra note 26, at 260.
R
76. See Eisenman, supra note 9, at 161.
R
77. See, e.g., B
ROKEN
P
EOPLE
, supra note 7, at 134-38.
R
78. Eisenman, supra note 9, at 159.
R
79. See, e.g.,P
OLICING
I
NDIA IN THE
N
EW
M
ILLENNIUM
(P.J. Alexander ed., 2002);
A
RVIND
V
ERMA
, T
HE
I
NDIAN
P
OLICE
: A C
RITICAL
E
VALUATION
152-64 (2005).
80. See Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477; David Bayley, The Police
and Political Order in India,23 A
SIAN
S
URV
. 484, 484 (1983).
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552 The Geo. Wash. Int’l L. Rev. [Vol. 41
more centralized force with a national oversight mechanism specif-
ically charged with combating discriminatory action taken by the
police and ending impunity for violators within the force.
Beyond the judiciary and police, other areas within the public
sector also need reform. For example, caste identity, as noted
above, is routinely used by politicians to mobilize support for elec-
tions and collective action.
81
This political organization of castes
has translated into the formation of caste-based interest groups.
82
Well-organized caste-based groups lobby for economic benefits and
the extension of reservations to members of their caste. This con-
tinuing use of caste as a rallying point requires the public and
explicit drawing of caste distinctions as well as the creation of caste-
specific causes. As long as people voluntarily self-identify using
caste, it might be assumed that caste as a social force will con-
tinue.
83
Politically, the continued fragmentation of the lower
castes into caste-specific groups can only benefit the social and
political elite.
84
If lower caste citizens and Dalits formed a large
opposition alliance, the traditional elite, who still dominate politics
today, would face serious challenges. In the current climate, caste
divisions and caste animosity persisting as different caste groups
tend to position themselves as rivals instead of victims of the same
system of stratification.
These perceived rivalries have been exacerbated by the practical
application of the reservation system designed to help the lower
castes “catch up” with the elite.
85
Extending benefits to low castes
required the creation of a specific legal identity for those qualified
to access the reservations system. Currently, there are more than
3000 caste groups designated as “backwards” and therefore allowed
to participate in various affirmative action schemes.
86
With a huge
portion of the population potentially eligible for aid and the caste
hierarchy varying from region to region, the process of defining
which groups are “backwards” and should receive benefits is con-
81. See S
HARMA
, supra note 60, at 181.
R
82. See id.
83. See Ambedkar, supra note 54, at 194.
R
84. See Suresh, supra note 60, at 377.
R
85. See P. Radhakrishnan, Backward Castes/Classes as Legal and Political Entities, in 2 T
HE
O
XFORD
I
NDIA
C
OMPANION TO
S
OCIOLOGY AND
S
OCIAL
A
NTHROPOLOGY
1474, 1490 (Veena
Das ed., 2003).
86. See R.K. P
RUTHI
, I
NDIAN
C
ASTE
S
YSTEM
212 (2004).
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2010] Ending Caste Discrimination in India 553
tentious and complex.
87
The Mandal Commission of 1980
88
was
one attempt by the government to designate certain groups as
“backward castes.”
89
The commission found that up to 52 percent
of the population could fall within this category, and its findings
were still met with high levels of criticism and outrage by those not
selected.
90
This process of assessment and selection has created
rivalries between different caste groups desiring to be included on
the reservations list.
91
At the national level—specifically with regard to political organi-
zation—caste has been changing and evolving, but at the more
local level, things have hardly changed.
92
For instance, in most cit-
ies and villages, people of low caste origins remain segregated in
what are usually poor housing situations.
93
Police brutality and dis-
crimination against lower caste and Dalit people has been widely
documented at the local level.
94
Additionally, caste has resulted in
the restriction of people from resources such as water. Dalits have
also been barred, sometimes violently, from entering temples. Fur-
thermore, education levels and literacy rates among the lower
castes remain far below the national averages while occupational
discrimination and even bonded labor continue.
95
In addition to
all of the actual abuses being perpetrated against low caste and
Dalit individuals, there is a continued social stigma that inflicts psy-
chological damage and mental anguish on the victims of such
abuse.
96
Considering the prevalence of caste divisions today at every level
of Indian society and politics, it is clear that the measures taken
87. See, e.g., Laura Dudley Jenkins, Race, Caste and Justice: Social Science Categories and
Antidiscrimination Policies in India and the United States, 36 C
ONN
. L. R
EV
. 747, 780-81 (2004)
(describing India’s difficulty in precisely defining caste membership).
88. The commission determined that there were 3743 castes. See A. Ramaiah, Identify-
ing Other Backward Castes, 27 E
CON
. & P
OL
. W
KLY
. 1203, 1204 (1992).
89. A similar undertaking was the Kaka Kalelkar Commission, established in 1953. It
found that there were 2399 backward castes in the country. While it made numerous rec-
ommendations, the report was not accepted by a number of its members and eventually
the Indian parliament rejected its findings as well. See id. at 1203-04.
90. See id. at 1205.
91. See J
AYARAMAN
, supra note 31, at 23.
R
92. See Channa, supra note 27, at 50, 52.
R
93. See id. at 50.
94. Such occurrences have been documented in many articles and reports, including
B
ROKEN
P
EOPLE
, supra note 7, at 8-9, H
IDDEN
A
PARTHEID
, supra note 3, at 4, and Eisenman,
R
supra note 9, at 137-39, 159-66.
R
95. See Geeta Gandhi Kingdon, The Progress of School Education in India, 23 O
XFORD
R
EV
. E
CON
. P
OL
Y
168, 174 (2007).
96. See Barbara Joshi, “Ex-Untouchable”: Problems, Progress, and Policies in Indian Social
Change, 53 P
AC
. A
FF
. 193, 218-19 (1980).
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554 The Geo. Wash. Int’l L. Rev. [Vol. 41
have not had the intended effects. To fully understand the chal-
lenges still faced in India, it is necessary to analyze Indian laws
relating to caste and the approach of domestic human rights insti-
tutions to eliminating caste discrimination. Through a closer anal-
ysis of all the mechanisms employed, a better understanding of the
anti-discrimination regime’s inadequacies may be achieved.
III. T
HE
L
AW AND
I
NSTITUTIONS
D
EALING WITH
C
ASTE IN
I
NDIA
India is a country with a constitution that guarantees non-dis-
crimination and complete equality before the law. The Indian par-
liament has enacted legislation to support the constitution, and the
Indian Supreme Court is active in trying to combat human rights
violations. There is an extensive set of measures in place to grant
economic benefits, set reservations, and institute affirmative action
for disadvantaged groups in politics, government service, and edu-
cation.
97
The government also created the National Human Rights
Commission to deal with human rights violations.
98
Nevertheless,
institutions and instruments alone are insufficient. While good
laws and progressive institutions play a useful role implementing
good measures, there must simultaneously be positive statements
by the government and other actors to set the tone for society to
accept and internalize the ideals behind such measures.
99
In India,
there have been many progressive statements about ending caste
discrimination on many occasions, including the following state-
ment in 2006 by Prime Minister Manmohan Singh:
The only parallel to the practice of “untouchability” was
Apartheid in South Africa. Untouchability is not just social dis-
crimination. It is a blot on humanity. That is precisely why the
Father of our Nation, Mahatma Gandhi declared, “My fight
against untouchability is a fight against the impure in
humanity.”
100
Additionally, at the hearings on India’s compliance with its obli-
gations under the ICERD in 2007, the Indian Solicitor General
stated that “[o]ur country is deeply conscious and concerned
97. See Jenkins, supra note 87, at 749.
R
98. See Charles H. Norchi, The National Human Rights Commission in India as a Value-
Creating Institution, in H
UMAN
R
IGHTS
: P
OSITIVE
P
OLICIES IN
A
SIA AND THE
P
ACIFIC
R
IM
113,
115 (John Montgomery ed., 1998).
99. For a similar view, see Gopal Guru & Shiraz Sidhva, India’s “Hidden Apartheid”,
UNESCO C
OURIER
, Sept. 2001, at 27, 29, available at http://www.unesco.org/courier/2001
_09/uk/doss22.htm.
100. Manmohan Singh, Prime Minister of India, Speech at the Dalit-Minority Interna-
tional Conference (Dec. 27, 2006), available at http://pmindia.nic.in/speech/content.asp?
id=482.
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2010] Ending Caste Discrimination in India 555
about caste and is fully committed to tackling this at every
level. . . .” The solicitor general added, however, that “[t]hese
issues need to be and are being addressed under appropriate mul-
tilateral human rights instruments, which does not include this
Convention.”
101
While the Indian government has made progres-
sive statements about ending caste discrimination, it maintains the
belief that it has taken sufficient measures to curb the abuse and
that it should do little more to remedy the situation. This compla-
cency is directly related to the continued high levels of abuse per-
sisting in India today.
Although the caste system is rooted in hierarchies created more
than 3500 years ago,
102
and any attempt to remove such an old and
deeply entrenched system will not be easy to achieve, the Indian
government is not absolved from its obligations and culpability. A
lack of political will to more actively recognize the extent of the
problem domestically and more actively combat caste discrimina-
tion at every level of government, combined with a refusal to
acknowledge the problem internationally, has limited the effective-
ness of those measures that have been taken.
103
It is important to
note, however, that just as Indian officials have not sufficiently
pressured the courts, police, and local officials to end discrimina-
tion, international actors have not sufficiently pushed the Indian
federal government into meaningful action.
A. The Constitution
Any survey of the institutions and instruments dealing with caste
in India must begin with the present constitution of the country.
The 1950 Indian Constitution attempted to improve the legal sta-
tus of low caste and Dalit peoples in India.
104
While it is difficult to
argue that anyone expected caste identities to disappear after the
introduction of the constitution, at the time, many believed that
with democracy and the start of modernization, caste would
decline in importance.
105
This viewpoint was expressed by Dr.
101. I
NT
L
D
ALIT
S
OLIDARITY
N
ETWORK ET AL
., F
ACT
S
HEET
: U.N. C
OMMITTEE ON THE
E
LIMINATION OF
R
ACIAL
D
ISCRIMINATION
(CERD) E
XAMINATION OF
I
NDIA
S
15
TH
– 19
TH
P
ERI-
ODIC
R
EPORTS
(2007), available at http://idsn.org/fileadmin/user_folder/pdf/Old_files/
un/pdf/India_CERD_Fact_Sheet.pdf.
102. See K
EANE
, supra note 26, at 267.
R
103. See Channa, supra note 27, at 62.
R
104. See G
RANVILLE
A
USTIN
, W
ORKING A
D
EMOCRATIC
C
ONSTITUTION
: T
HE
I
NDIAN
E
XPERI-
ENCE
6 (2004).
105. See Eisenman, supra note 9, at 149; Z
INKIN
, supra note 28, at 69;
R
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556 The Geo. Wash. Int’l L. Rev. [Vol. 41
Ambedkar, the chief architect of the Indian Constitution as
follows:
On the 26th January 1950, we are going to enter into a life of
contradictions. In politics we will have equality and in social
and economic life we will have inequality. We must remove this
contradiction at the earliest possible moment or else those who
suffer from inequality will blow up the structure of political
democracy which this Assembly has [so] laboriously built up.
106
Despite the promising new beginning at the introduction of
democracy to India, for many lower caste members, the realities of
daily life have hardly improved at all, suggesting that enumerating
rights alone has not been enough to actually force change to take
place. A progressive legal structure has been built on weak social
and political foundations and the result has been the frailty of the
protections and rights constructed.
The 1950 Indian Constitution stresses equality and social jus-
tice.
107
In its preamble, the drafters state that one of the goals of
the constitution was to secure “[e]quality of status and of opportu-
nity” for its citizens.
108
India’s Constitution was considered pro-
gressive for its time and its drafters went to great pains to
enumerate specific rights and responsibilities.
109
For instance, the
practice of untouchability was explicitly outlawed and more gen-
eral statements of equality were explicitly made in the constitu-
tion.
110
The rights to equal treatment are coupled with a
responsibility placed upon the government not only to end dis-
crimination perpetrated by government actors, but also to prevent
private individuals and organizations from violating the fundamen-
tal rights of others.
111
The basic principles of non-discrimination and equality derive
from Articles 14-16 of the Indian Constitution.
112
Article 14 grants
all citizens equality before the law.
113
Article 15 prohibits discrimi-
nation and mentions caste discrimination as one type of discrimi-
nation that is no longer permissible.
114
The legal foundation for
granting reservations and benefits to the disadvantaged is in Article
106. V.R. K
RISHNA
I
YER
, Marginalized Indian Humanity: Do the Bells of the Constitution Toll
For Them?, in L
EGALLY
S
PEAKING
130, 132 (2004) (emphasis in original omitted).
107. See G
UPTA
, supra note 60, at 116.
R
108. I
NDIA
C
ONST
. pmbl, available at http://lawmin.nic.in/coi/coiason29july08.pdf.
109. See D.K. S
INGH
, V.N. S
HUKLA
S
C
ONSTITUTION OF
I
NDIA
, at A-31 (7th ed. 1982.).
110. I
NDIA
C
ONST
. art. 17 (dealing specifically with the issue of “untouchability”).
111. See M.V. P
YLEE
, C
ONSTITUTIONAL
G
OVERNMENT IN
I
NDIA
192 (1960).
112. See K
EANE
, supra note 26, at 117.
R
113. I
NDIA
C
ONST
. art. 14.
114. Id. art. 15.
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2010] Ending Caste Discrimination in India 557
15, as the government retains the right to make “special provision
for the advancement” of any group that is “backward.”
115
Further-
more, Article 16 of the constitution involves equality of opportu-
nity for public employment in all of its various forms.
116
Finally,
Article 17 makes the practice of “untouchability” illegal for both
government actors and private citizens.
117
The cumulative effect of
these articles is the extension of fundamental rights to all citizens
that are supported by governmental duties to refrain from any
form of discrimination and prevent private citizens and organiza-
tions from practicing discrimination. Additional relevant advances
made by the constitution are articles that create the Scheduled
Castes, Tribes, and Other-Backwards Caste distinctions as well as
the articles that set up a system of providing reservations for those
groups.
118
Essentially, the constitution codifies a system of affirma-
tive action that is justified in terms of “social justice.”
119
Like the
provisions on equality, the provisions that introduce the reserva-
tion system to India have widely been regarded as progressive and
comprehensive.
120
An assessment of the 1950 Constitution suggests that it is a pro-
gressive document that would seem to move India a long way
towards true equality and the end of discrimination. Yet, as has
been noted, “No doubt on the basis of [twenty] odd Articles in the
Constitution, India can get full marks. But all that is on paper.”
121
Additionally, in assessing the impact of the constitution, one
must also consider what was omitted from the constitution. One
criticism of the 1950 Constitution is that while the constitution
does create equality for all citizens of India, this equality is largely
procedural equality that focuses on the application of laws.
122
More specifically, broader equality that might include concepts like
socioeconomic equality is almost entirely absent.
123
This is signifi-
cant because the reality is that most low caste and Dalit people are
still economically dependent on high caste persons. Until they can
115. Id. art. 15, § 4, amended by I
NDIA
C
ONST
. amend I, § 2.
116. Id. art. 16.
117. See K
EANE
, supra note 26, at 118.
R
118. I
NDIA
C
ONST
. arts. 15-17, 243, 330, 335, 341-42. For additional protection suppos-
edly provided by the Indian Constitution, see also id. arts. 23-25, 46.
119. See S
HARMA
, supra note 68, at 134.
R
120. See L
AURA
D
UDLEY
J
ENKINS
, I
DENTITY AND
I
DENTIFICATION IN
I
NDIA
: D
EFINING THE
D
ISADVANTAGED
17 (2003).
121. Nayar, supra note 38, at 173.
R
122. See G
UPTA
, supra note 60, at 151.
R
123. See id.
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558 The Geo. Wash. Int’l L. Rev. [Vol. 41
achieve some economic independence, the rights the constitution
grants them will be difficult to realize.
124
Also noticeably absent from the constitution is an article directly
relating to caste discrimination. In fact, the document explicitly
states little about caste, and this silence indicates that the official
government position on the caste system is ambiguous and its con-
tinuation is neither guaranteed nor expressly abolished.
125
Essen-
tially, the constitution separates the issue of “untouchability” from
the issue of caste discrimination and then avoids any additional
mention of caste. Untouchables, as the group resting below the
caste system, are removed from the equation through Article 17 of
the constitution and the rest of the caste system is not specifically
addressed.
126
Some people criticized this silence during the draft-
ing process and some members of the constituent assembly sup-
ported the idea of an abolition of the caste system.
127
This type of
complete attack on caste and the roots of the system of discrimina-
tion proved politically untenable as consensus was only reached
on discussions of political and legal rights.
128
After this point,
the social reform movement largely avoided the issue of caste dis-
crimination and instead focused on the by-product of
“untouchability.”
129
B. The Role of the Courts
Like the constitution, the record of the Indian courts has also
had mixed results in struggling to end caste discrimination. For
instance, the judgments of the Indian Supreme Court reveal that
the court is dedicated to ending the practice of caste discrimina-
tion. Yet, these judgments also reveal an internal struggle with giv-
ing up traditional notions of caste identity.
130
Evidence of the inability to get past traditional notions of caste
barriers can be found in a number of cases.
131
In Patil v. Additional
Commissioner of Tribal Development,
132
for instance, a pair of sisters
124. J
AYARAMAN
, supra note 31, at 31.
R
125. See Eisenman, supra note 9, at 148-49.
R
126. See id. at 146, 148.
127. See K
EANE
, supra note 26, at 124.
R
128. See G
UPTA
, supra note 60, at 139.
R
129. See Ambedkar, supra note 54, at 191.
R
130. See, e.g., Jenkins, supra note 87, at 759-62.
R
131. See, e.g., M.R. Balaji v. State of Mysore, (1962) Supp. 1 S.C.R. 439, 471-72 (over-
turning a number of state affirmative action provisions benefiting victims of caste
discrimination).
132. Kumari Madhuri Patil v. Additional Comm’r, (1994) Supp. 3 S.C.R. 50, 59.
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2010] Ending Caste Discrimination in India 559
applied to university as members of a scheduled tribe; both sisters
were admitted. Upon further review later in their college careers,
they were found to be members of a “backward caste” instead of a
scheduled tribe, which meant their applications should not have
been considered among those taken to fulfill reservation require-
ments for scheduled tribes.
133
In a strongly worded decision, the
court denounced the efforts of “spurious tribes” to snatch away
positions that should be reserved for those with “genuine”
claims.
134
In order to conclude what caste or tribe the Patil sisters
legally belonged to, the court relied on ethnological research.
135
By taking this approach, the justices implied that the government
should approach identity and communities through categoriza-
tions based on the traditional system of divisions.
136
This therefore
incorporates the social stratifications the court wishes to eliminate
into the workings of the state.
137
An alternative approach would
have been to consider the economic and social situation of the
Patil sisters and decide the case based on whether these students
represented a segment of society that reservations should help.
While the court has shown a reluctance to reduce the legal sig-
nificance of traditional identities, it has concurrently made deci-
sions that have introduced economic indicators into the definition
of disadvantaged communities. In Indira Sawhney v. the Union of
India,
138
where the court considered one of the most controversial
cases ever decided in India, the court allowed for the consideration
of individual economic factors along with group economic factors
and caste histories.
139
This decision seems to contradict Patil, in
which strict definitions of disadvantaged groups along lines drawn
through ethnological history had been applied.
140
Sawhney opens
up the idea of class and economic disadvantage as a decisive factor
in identifying disadvantaged groups and communities that need
support from the government, indicating a step away from the
traditional notions of caste definitions and divisions.
141
133. See id. at 60.
134. See id. at 67.
135. See id. at 60-61.
136. See id. at 61.
137. See Jenkins, supra note 87, at 761.
R
138. Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477.
139. See Jenkins, supra note 87, at 755. See generally G
ARY
J
ACOBSOHN
, T
HE
W
HEEL OF
R
L
AW
: I
NDIA
S
S
ECULARISM IN
C
OMPARATIVE
C
ONSTITUTIONAL
C
ONTEXT
(2005); V.K.S.
C
HAUDHARY
, T
HE
I
VORY
T
OWER
: 51 Y
EARS OF THE
S
UPREME
C
OURT
(2002).
140. See Kumari Madhuri Patil v. Additional Comm’r, (1994) Supp. 3 S.C.R. 50, 63-64.
141. See generally Indira Sawhney, A.I.R. 1993 S.C. 477.
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560 The Geo. Wash. Int’l L. Rev. [Vol. 41
The Supreme Court has also supported the elimination of caste
discrimination by protecting the powers of the government to com-
bat caste discrimination and ensure the end of discriminatory prac-
tices. In 1954, the court held that police could not impose
restrictions or base policing decisions on their assessments of caste
proclivity to commit crimes.
142
In 1992, in State of Karnataka v.
Ingale, the court upheld Article 17 of the Indian Constitution,
which places a constitutional obligation upon state actors to take
necessary steps to prevent the practice of “untouchability” even
when the violations are carried out by private citizens.
143
This judg-
ment, in association with Article 17 itself, creates accountability on
the part of officials who do not push for compliance among the
local populations.
144
Perhaps one of the most interesting cases to consider is People’s
Union for Democratic Rights v. Union of India,
145
which first intro-
duced public interest litigation into the Indian judicial system.
The Supreme Court introduced public interest litigation in an
attempt to increase the opportunities for incidents of discrimina-
tion to be exposed and adjudicated.
146
Any individual or group of
activists can file a writ on behalf of any victim of abuse, seeking the
enforcement of some civil rights standard by the court. In its deci-
sion, the court stated as follows:
The time has now come when the courts must become the
courts for the poor and struggling masses of this country. They
must shed their character as upholders of the established order
and the status quo. They must be sensitised to the need of
doing justice to the large masses of people to whom justice has
been denied by a cruel and heartless society for generations.
147
The language of the court in People’s Union reflects a strong com-
mitment to ending all forms of discrimination and injustice in
Indian society.
In general, the Supreme Court of India has worked hard to
extend the protections enshrined in the constitution to all the
country’s citizens.
148
Unfortunately, these good intentions are not
present throughout the Indian legal system.
149
Furthermore, the
142. See Sanhar Umar Ranmol v. State, A.I.R. 1952 Saurashtra 124, 124-25.
143. See State of Karnataka v. Appa Balu Ingale, (1995) Supp. 4 S.C.C. 469, 484.
144. See Eisenman, supra note 9, at 168-69.
R
145. People’s Union for Democratic Rights v. Union of India, (1983) 1 S.C.R. 456.
146. See G
UPTA
, supra note 60, at 197.
R
147. People’s Union for Democratic Rights, (1983) 1 S.C.R. at 458.
148. See Gerald Beller, Benevolent Illusions in a Democratic Society: The Assertion of Supreme
Court Authority in Democratic India, 36 W. P
OL
. Q. 513, 528 (1983).
149. See Eisenman, supra note 9, at 158.
R
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2010] Ending Caste Discrimination in India 561
good intentions of some courts are often are not supported by
those in administrative positions that are expected to carry out the
enforcement of the court’s decisions.
150
In fact, Ingale was
appealed to the Supreme Court specifically because the High
Court for the State of Karnataka had been blatantly discriminatory
in one of its decisions.
151
The presiding judge at the state level had
dubiously thrown out testimony by Dalit people as being untrust-
worthy.
152
Without this testimony, the judge ruled in favor of the
high caste defendants, who had been convicted in lower courts of
preventing the Dalit plaintiff from using the community well at
gunpoint.
153
This occurrence reflects the pervasiveness of caste
discrimination, even within the ranks of the judiciary. Moreover,
with the small number of cases that ever reach the Supreme Court
of India, and the thousands of cases decided every year in India,
the activism and good intentions even of that powerful court have
limitations. The problem of caste-based biases throughout various
levels of the judiciary remains a major obstacle to the effective
elimination of caste discrimination.
154
C. The National Human Rights Commission of India
In 1993, the National Human Rights Commission of India
(NHRC) was created by the Protection of Human Rights Act.
155
The NHRC was given the broad task of conducting inquiries into
violations, reviewing laws and policies, and taking the lead in
human rights education.
156
Eighteen state-level commissions were
also created.
157
Those fighting to end caste discrimination hoped
that these commissions would lead to a closer review of caste dis-
crimination violations by civil servants, as well as help India better
understand and apply international standards of human rights.
158
Generally, these expectations have not been met. To a large
extent, the NHRC has been timid in opposing the government.
159
150. See Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting
the Impossible?, 37 A
M
. J. C
ONTEMP
. L. 495, 517 (1989).
151. See K
EANE
, supra note 26, at 250-51.
R
152. See id.
153. See id.
154. See Eisenman, supra note 9, at 167-69.
R
155. The Protection of Human Rights Act, 1993, No. 10 of 1994, ch. II, art. 3, available
at http://nhrc.nic.in/Publications/HRActEng.pdf.
156. Id. ch. III, art. 12.
157. See National Human Rights Commission, State Human Rights Commissions,
http://nhrc.nic.in/shrc.htm (last visited Mar. 6, 2010).
158. See Eisenman, supra note 9, at 154-55.
R
159. See Nayar, supra note 38, at 172-73.
R
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562 The Geo. Wash. Int’l L. Rev. [Vol. 41
It has often shied away from identifying discriminatory trends
among government actors and has shown a lack of will to assert
itself on issues that the government does not wish to see publicly
addressed.
160
The various state commissions have never developed
into institutions with significant influence largely due to a lack of
cooperation between the NHRC and the various state
institutions.
161
Furthermore, the NHRC has disappointed those who had hoped
that caste discrimination would be an important focus of the
NHRC. From 2004 to 2005, only 583 of approximately 25,000 cases
registered with the NHRC were considered within the context of
“Atrocities on Scheduled Castes and Scheduled Tribes.”
162
Many
of the other complaints certainly could have fallen under this cate-
gory but were listed under other groupings. The 2004-2005 annual
report also extends only two pages to the discussion of human
rights abuse against the Scheduled Castes.
163
The under-emphasis
on one of India’s most serious human rights challenges does not
reflect well on the perceived independence and strength of the
NHRC.
The NHRC has also failed to bring India more in step with inter-
national standards. The NHRC does mention international trea-
ties and commitments with some regularity in its reports, but it has
not asserted itself regarding controversial stances taken by the
Indian government.
164
The most telling example is the NHRC’s
failure to oppose India’s unwillingness to discuss caste during the
2001 World Conference Against Racism, Racial Discrimination,
Xenophobia, and Related Intolerance in Durban.
165
The Indian
government claimed that caste discrimination did not fall into any
of the categories discussed.
166
The NHRC had the opportunity to
protest the government’s elimination of this important discussion,
but it remained silent. Through its silence, the NHRC supported
the government in preventing the open discussion of caste discrim-
ination at the international level.
167
160. See id.
161. See S
OUTH
A
SIA
H
UMAN
R
IGHTS
D
OCUMENTATION
C
TR
., J
UDGEMENT
R
ESERVED
: T
HE
C
ASE OF THE
N
ATIONAL
H
UMAN
R
IGHTS
C
OMMISSION OF
I
NDIA
122 (2001).
162. N
AT
L
H
UMAN
R
IGHTS
C
OMM
N
, A
NNUAL
R
EPORT
2004-2005, at 339 (2006), available
at http://nhrc.nic.in/Documents/AR/AR04-05ENG.pdf.
163. Id. at 143-45.
164. Sukhadeo Thorat & Umakant, Introduction to C
ASTE
, R
ACE AND
D
ISCRIMINATION
,
supra note 38, at xiii, xxiii.
R
165. Id.
166. See id.
167. See Nayar, supra note 38, at 173.
R
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2010] Ending Caste Discrimination in India 563
Admittedly, the NHRC has clearly shown a desire to improve the
human rights situation in India. Unfortunately, it has not enjoyed
too much success.
168
The NHRC has a fine line to walk in criticiz-
ing the government, as it does not have the constitutional authority
and the legitimacy that the Indian Supreme Court has.
169
Even in
those instances when the NHRC has opposed or criticized the gov-
ernment and government institutions, the effectiveness of those
protests are limited by formal and informal limitations on the
power of the NHRC.
170
Formal limitations include a lack of review
power over India’s security forces and a limited power to make spe-
cific inquiries into human rights violations.
171
Informally, the
NHRC has found the government less than responsive to its deci-
sions and recommendations. In general, the government has bla-
tantly disregarded the NHRC’s opinions.
172
For instance, when the
NHRC suggested the abolition of the Criminal Tribes Act for its
draconian provisions against certain minorities in the eastern sec-
tor, the government made no effort to follow this recommendation
or even consider amending the act.
173
Without governmental
attempts to enforce or give some meaning to the NHRC’s deci-
sions, the NHRC will be unable to achieve practical results in the
realm of caste discrimination.
IV. C
ASTE IN
I
NTERNATIONAL
H
UMAN
R
IGHTS
L
AW
Since its independence, India has been active in the interna-
tional human rights movement and is a party to most of the major
international treaties and declarations. Given this level of involve-
ment, a number of international treaties and findings by treaty
bodies require that India properly address caste discrimination.
The ICERD
174
is most applicable, although the Indian government
disputes this. Other applicable treaties include the International
Convention on Civil and Political Rights (ICCPR),
175
the Interna-
168. See id. at 172.
169. See S
OUTH
A
SIA
H
UMAN
R
IGHTS
D
OCUMENTATION
C
TR
., supra note 161, at 1-14.
R
170. See, e.g., Nayar, supra note 38, at 172-73.
R
171. See U.N. Human Rights Comm. [HRC], Concluding Observations of the Human Rights
Committee: India, ¶ 7, U.N. Doc. CCPR/C/79/Add.81 (Aug. 4, 1997) [hereinafter Conclud-
ing Observations of the HRC: India].
172. See P.N. Bhagwati, Racial Discrimination as a Grave Violation of Human Rights, in
C
ASTE
, R
ACE AND
D
ISCRIMINATION
, supra note 38, at 199, 205 (2004).
R
173. See id.
174. International Convention on the Elimination of All Forms of Racial Discrimina-
tion, Dec. 21, 1965, S. Exec. Doc. C, 95-2 (1978), 660 U.N.T.S. 195 [hereinafter ICERD].
175. International Convention on Civil and Political Rights, Dec. 19, 1966, S. T
REATY
D
OC
.N
O
. 95-18, 999 U.N.T.S. 171 [hereinafter ICCPR].
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564 The Geo. Wash. Int’l L. Rev. [Vol. 41
tional Covenant on Economic, Social and Cultural Rights
(ICESCR),
176
the Convention on the Rights of the Child (CRC),
177
and the Convention on the Elimination of All Forms of Discrimina-
tion against Women (CEDAW).
178
Yet, because none of these con-
ventions specifically mentions the word caste, interpretation is
required to determine each treaty’s relevance.
179
The Indian gov-
ernment maintains that the issue of caste discrimination is purely
regional and domestic because of the absence of “caste” from the
treaties, and thus concludes that eliminating caste discrimination is
excluded from the international commitments of countries that
are parties to the treaties.
India has largely rejected actions taken on the issue of caste by
the international community and treaty bodies as attempts to influ-
ence its domestic affairs.
180
This dispute has played out most
openly in the discussions of the Committee on the Elimination of
all Forms of Racial Discrimination, where an active dialogue in
2007 between the committee and India took place. On multiple
occasions, the committee has attempted to require India to report
on caste discrimination and has interpreted the ICERD as covering
caste discrimination. India has firmly rejected and rebuffed these
attempts at oversight. Yet, as has been argued, “India is susceptible
to international condemnation of the practice of caste. There
must be sustained criticism of the practice in each field of refer-
ence, civil and political rights, economic and social rights, racial
discrimination, the rights of women and the rights of children.”
181
V. C
ASTE AND THE
I
NTERNATIONAL
C
ONVENTION TO
E
LIMINATE
A
LL
F
ORMS OF
R
ACIAL
D
ISCRIMINATION
The ICERD
182
defines the term “racial discrimination” in Article
1(1). This article states that the term refers to “any distinction,
exclusion, restriction or preference based on race, colour, descent,
176. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966,
S. T
REATY
D
OC
. N
O
. 95-19, 993 U.N.T.S. 3 [hereinafter ICESCR].
177. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinaf-
ter CRC].
178. Convention on the Elimination of All Forms of Discrimination against Women,
Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW].
179. See Deepa Reddy, The Ethnicity of Caste, 78 A
NTHROPOLOGICAL
Q. 543, 561 (2005).
180. See Thorat & Umakant, supra note 164, at xxvi.
R
181. K
EANE
, supra note 26, at 239.
R
182. The ICERD was adopted by the General Assembly of the United Nations in resolu-
tion 2106 (XX) on December 21, 1965. It entered into force on January 4, 1969. ICERD,
supra note 174, pmbl. n.1.
R
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2010] Ending Caste Discrimination in India 565
or national or ethnic origin . . .”
183
It is not seemingly accepted
that caste discrimination is an issue of race, color, or national ori-
gin.
184
It is also doubtable that caste would fall into the definition
of the term “ethnic,” as members of different castes share lan-
guage, culture, and geographical origins. In fact, these commonal-
ities created the caste system. Therefore, by process of elimination,
but also of logic, it would seem that caste discrimination must be
incorporated into the definition of the term “descent-based” dis-
crimination. Caste is based upon the idea that one falls within a
particular group because one is born into it, and thus it falls
squarely within the notion of descent. Caste discrimination is
entirely based on the family or community into which a person is
born. Once a child is born into a certain community, there is no
way to change its caste and the child has extremely limited oppor-
tunities for upward mobility.
185
The United Nations and its various
bodies, as well as the treaty bodies to relevant human rights trea-
ties, all uphold this definition of caste-based discrimination as one
type of discrimination based on descent.
In 2002, the CERD released a General Recommendation that
“[s]trongly reaffirm[ed] 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 . . . .”
186
This definition of “descent-based” discrimi-
nation explicitly incorporates caste and would therefore consider
caste discrimination to be an issue addressed by the ICERD. In
2007, the CERD found as follows:
[D]iscrimination based on “descent” includes discrimination
against members of communities based on forms of social strati-
fication such as caste and analogous systems of inherited status
which nullify or impair their equal employment of human
rights. Therefore, the Committee reaffirms that discrimination
based on the ground of caste is fully covered by [A]rticle 1 of
the Convention.
187
183. Id. art. 1, § 1.
184. Racial discrimination and caste discrimination are generally no longer deemed
comparable. See K
EANE
, supra note 26, at 268.
R
185. See J
AYARAMAN
, supra note 31, at 23.
R
186. U.N. Comm. on the Elimination of Racial Discrimination, General Recommendation
XXIX on Descent-Based Discrimination, ¶ 7, U.N. Doc. CERD/C/61/Misc.29/rev.1 (Aug. 22,
2002).
187. Concluding Observations of CERD: India, supra note 6, ¶ 8 (citation omitted).
R
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566 The Geo. Wash. Int’l L. Rev. [Vol. 41
This inclusion of caste as descent-based discrimination has not
been accepted by the Indian government.
188
India’s position is
that caste discrimination falls neither into the category of racial
nor descent-based discrimination and therefore is not covered by
the ICERD.
189
In February 2007, the CERD reviewed India’s peri-
odic statements submitted under Article 9 of the ICERD.
190
At the
review meeting, India’s representative explained that “[c]aste
could not be considered as descent, which signified genealogical
demonstrable characteristics. In the same caste, people had multi-
ple descents, and could not intermarry: they had to go outside
their own lineage.”
191
In terms of a strict definition of the concepts
involved, India’s claim that caste is not an instance of “descent-
based discrimination” has some resonance because of the ambigu-
ity surrounding the term “descent-based discrimination.”
192
Because of this difference in definition, the Indian government has
claimed that it has no reporting obligation to the CERD, and any
information it provided regarding caste was purely voluntary, and
was provided because it “might be of interest to the Committee.”
193
India’s insistence on the fact that any information it provides relat-
ing to caste is purely voluntary is a serious issue in that it could at
any time withhold information relevant to caste discrimination and
disregard the CERD’s recommendations on the issue. Further-
more, according to an interpretation of the ICERD, the CERD can
only take decisions based on information received by country
reports.
194
If India’s definition stands and caste discrimination is not regu-
lated by the treaty, the most significant effect is related to Article 2
of the ICERD. Article 2 sets out the most important national obli-
gations to end racial discrimination. Article 2(1)(d) states that
188. See K
EANE
, supra note 26, at 237.
R
189. See id.
190. Article 9 of the ICERD requires that each state party to the ICERD report on “the
legislative, judicial, administrative or other measures which they have adopted and which
give effect to the provisions of the Convention: (a) within one year after the entry into
force of the Convention for the State concerned; and (b) thereafter every two years and
whenever the Committee so requests.” ICERD, supra note 174, art. 9.
R
191. U.N. Comm. on the Elimination of Racial Discrimination, Summary Record of the
1796th Meeting, ¶ 13, U.N. Doc. CERD/C/SR/1796 (Mar. 2, 2007) (statement of Mr.
Gupta) [hereinafter CERD, Summary Record].
192. See K
EANE
, supra note 26, at 237.
R
193. CERD, Summary Record, supra note 191, ¶ 3 (statement of Mr. Singh).
R
194. See Jose Gomez del Prado, United Nations Convention on Human Rights: The Practice
of the Human Rights Committee and the Committee on the Elimination on all Forms of Racial Dis-
crimination in Dealing with Reporting Obligations of States Parties, 7 H
UM
. R
TS
. Q. 492, 499-500
(1985).
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2010] Ending Caste Discrimination in India 567
“[e]ach State Party shall prohibit and bring to an end, by all appro-
priate means, including legislation as required by circumstances,
racial discrimination by any persons, group or organization . . . .”
195
This provision establishes a high standard to which governments
are held, as it not only requires that measures be taken to make
discrimination illegal, but also that the measures they take should
be effective and ultimately successful. Because India has taken
measures to end caste in terms of its constitutions and laws, its fail-
ures under the ICERD have been in the enforcement and applica-
tion of those laws. Article 2 clearly introduces enforcement and
application into the realm of consideration of the CERD. India
admits that problems still exist relating to caste discrimination, but
its interpretation of its ICERD commitments suggests that India
does not see itself as having any international legal commitments
regarding the caste discrimination.
While India has stood firm on its position that the ICERD does
not cover caste-related discrimination, the CERD has been equally
firm in asserting its position that it does have the right to require
reports from India on the issue.
196
During the February 2007
meeting to consider India’s reports to the CERD, several commit-
tee members rejected India’s position.
197
Patrick Thornberry, a sit-
ting member of the CERD, stated that “[i]n international law, an
evolutionary interpretation of terms was common practice; the
Committee had, over time, deployed a broad interpretation of the
word ‘descent’ and was of the view that the language contained in
the Convention was adequate to capture the notion of caste-based
discrimination.”
198
Thornberry explicitly stated that the CERD had
chosen to apply a “broad interpretation of the word
‘descent’ . . .”
199
This might be seen as problematic by many gov-
ernments as it might imply some sort of a “creeping jurisdiction”
being applied by a non-judicial body.
200
While some states may be
nervous about a body interpreting a treaty without input from the
states bound by that treaty, the CERD arguably needs this power to
maintain its relevance.
201
195. ICERD, supra note 174, art. 2, § 1(d).
R
196. See K
EANE
, supra note 26, at 237.
R
197. See, e.g., CERD, Summary Record, supra note 191, ¶ 35 (statement by Mr.
R
Thornberry).
198. Id. ¶ 36.
199. Id.
200. See Michael Banton, Decision-taking in the Committee on the Elimination of Racial Dis-
crimination, in T
HE
F
UTURE OF
UN H
UMAN
R
IGHTS
T
REATY
M
ONITORING
55, 78 (Philip
Alston & James Crawford eds., 2000).
201. See id. at 56-58.
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568 The Geo. Wash. Int’l L. Rev. [Vol. 41
It is generally accepted that the ICERD has been expanding to
cover types of discrimination not actually considered by the draft-
ers.
202
When the ICERD was prepared, most of the focus of the
treaty was on racism resulting from colonialism or international
doctrines of racial superiority.
203
Therefore, most states that
signed and ratified the ICERD believed it would cover mostly other
states that had some colonial history; few states seemed to think it
would affect their domestic politics.
204
This perception is sup-
ported by the fact that more than half of the first forty-five states
going through CERD reviews denied suffering from any racial dis-
crimination.
205
The CERD has expanded the definition of racial
discrimination steadily to make sure that each member country is
now stringently scrutinized and that there are no countries that
can escape criticism altogether.
206
Thus, it is important to under-
stand what is meant by CERD in this regard. A good starting place
from which to discuss the legality of the CERD’s interpretations is
the “traveaux preparatoires” of the treaty.
According to the Vienna Convention on the Law of Treaties, if
there is no clear answer to an interpretational dispute in the text of
the treaty, its context and the “traveaux preparatoires” should be
taken into account, as well as the international context considering
other treaties, international practice, and other relevant rules of
international law.
207
The CERD has in fact referred to the
“traveaux preparatoires” in trying to assert its right of review over
caste discrimination in India.
208
It argued that India was actually
the country to suggest including “descent-based” discrimination in
the official definition of “racial discrimination” during the drafting
process.
209
This seems to imply some specific relevance of the
word to the Indian context.
210
India rejected this interpretation of
the context by explaining that it suggested the term because of its
colonial history and the desire to ensure a discontinuation of
racism against the Indian Diaspora.
211
An assessment of the actual
discussion confirms India’s explanation as the insertion of the
202. See K
EANE
, supra note 26, at 237; Banton, supra note 200, at 75.
R
203. See Banton, supra note 200, at 58.
R
204. See id.
205. See K
EANE
, supra note 26, at 207.
R
206. See id.
207. See Vienna Convention on the Law of Treaties arts. 31-32, Jan. 27, 1980, 23 U.S.T.
3227, 1155 U.N.T.S. 331.
208. See K
EANE
, supra note 26, at 226-27.
R
209. See id. at 226.
210. See CERD, Summary Record, supra note 191, ¶¶ 6-7 (statement of Mr. Vahanvati).
R
211. See id. ¶ 8 (statement of Mr Vahanvati).
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2010] Ending Caste Discrimination in India 569
word “descent” corresponds with a discussion regarding the
national origins of the persons under discussion.
212
Considering the facts, it seems that the “traveaux prepartoires”
do not offer any support for the legal standing of the CERD’s inter-
pretation of the ICERD. This does not necessarily mean that the
CERD cannot interpret the treaty in question. Perhaps the most
appropriate legal assessment of this stalemate was introduced by
Judge Thomas Buergenthal, who offered that the interpretation of
the CERD stands unless it is explicitly objected to. In the case of
such an objection, the International Court of Justice would arbi-
trate the dispute, as Article 22 of the ICERD makes that court the
arbiter of the ICERD’s meaning.
213
This argument has never been
tested, as neither India nor the CERD seem to desire to press the
issue outside of India’s periodic report presentations.
The inability of the CERD to find a foothold in international law
with which to pressure India on the issue of caste discrimination
has proven to be problematic. There is no provision within the
ICERD to address differences of interpretation and the CERD’s
decisions have little or no binding power.
214
Without India’s con-
sent to allow the CERD to review its laws regarding caste and
render decisions about the enforcement situation in India, the
CERD is unlikely to act at all. The CERD knows that any decisions
it makes about caste in India will not be put into effect and will be
rejected by the Indian government. This public display of impo-
tence may erode the CERD’s power with regard to its relations with
other states. Without some way to resolve the dispute and incorpo-
rate caste into the scope of the ICERD, India will be able to con-
tinue avoiding any international obligations to end caste
discrimination that might be created through the ICERD.
VI. C
ASTE AND
O
THER
I
NTERNATIONAL
H
UMAN
R
IGHTS
T
REATIES
Considering the effects that caste discrimination has on such a
large portion of the population in India, there are certainly human
rights violations occurring that violate both the ICCPR
215
as well as
the ICESCR.
216
For instance, caste discrimination arguably denies
lower caste people equal status before the law, which is a violation
212. See K
EANE
, supra note 26, at 226.
R
213. See Thomas Buergenthal, Implementing the UN Racial Convention, 12 T
EX
. I
NT
L
L.J.
187, 207 n.104 (1977).
214. See Banton, supra note 200, at 59.
R
215. ICCPR, supra note 175, pt. II, art. 2.
R
216. ICESCR, supra note 176, pmbl.
R
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570 The Geo. Wash. Int’l L. Rev. [Vol. 41
of Article 14 of the ICCPR.
217
Caste discrimination also causes
high caste crimes against lower caste people that often go unpun-
ished, which indicates that those lower caste people have no
chance at redress through the legal system; this may be a violation
of Article 2 of the ICCPR.
218
Caste discrimination also leads to vio-
lations of Article 7 of the ICESCR,
219
which discusses equal oppor-
tunity and fair wages. Human rights abuses arising from caste
discrimination also may fall under the auspices of several other
prominent international human rights treaties. For instance, the
CEDAW could be applied in the cases of ritual prostitution.
220
The
CRC could also be applied to situations in which low caste children
do not have access to acceptable standards of medical treatment or
are segregated and discriminated against at school.
221
Despite a vast array of international human rights law treaties
that seem to indirectly address the issue of caste discrimination,
none has resulted in any strong pressure being placed on India to
truly end the practice. Explaining why these treaties have been
ineffective in pressuring India on the issue of caste is difficult.
First, India does not accept criticism about caste because it does
not think it is an international problem.
222
India believes it is a
cultural phenomenon that other countries have no basis to under-
stand. This strong stance, coupled with the fact that India has
been superficially compliant, make the issue difficult to raise at the
international level. Second, approaching the issue of caste
through other rights issues, like the rights of women or children,
often never reaches the overarching problem of caste itself. It is
easier for a legislature to address problems specifically rather than
through an umbrella issue, such as the huge umbrella issue of
caste. This is so despite the fact that caste discrimination is the
217. See ICCPR, supra note 175, art. 14 (“All persons shall be equal before the courts
R
and tribunals.”).
218. See id. art. 2 (“Each State Party . . . undertakes to respect and to ensure to all
individuals . . . the rights recognized in the present Covenant, without distinction of any
kind . . . .”).
219. See ICESCR, supra note 176, art. 7 (“The State Parties . . . recognize the right of
R
everyone to the enjoyment of just and favourable conditions of work which ensure . . . fair
wages . . . with equal pay for equal work . . . .”).
220. See CEDAW, supra note 178, art. 6 (“State Parties shall take all appropriate mea-
R
sures . . . to suppress all forms of traffic in women and exploitation of prostitution of
women.”).
221. See id. art. 28 (“States Parties recognize the right of the child to education . . . .”);
CRC, supra note 177, art. 24 (“States Parties recognize the right of the child to the enjoy-
R
ment of the highest attainable standard of health . . . .”).
222. See G
UPTA
, supra note 60, at 54-55.
R
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2010] Ending Caste Discrimination in India 571
root cause of all of these other rights violations towards women and
children.
One of the most meaningful interactions between India and a
U.N. body occurred in 1997 in the Human Rights Committee’s
(HRC) periodic review of India.
223
At that meeting, India seemed
to impress the HRC, which noted “with satisfaction the existence of
a broad range of democratic institutions and a comprehensive con-
stitutional and legal framework for the protection of human
rights.”
224
The HRC briefly mentioned caste discrimination in Arti-
cle 15 of the review.
225
It is addressed in two sentences and the
only recommendation offered by the HRC is that India should
increase its efforts to offer education programs to combat caste dis-
crimination.
226
The brief mention of caste discrimination by the
HRC is typical of each periodic review with any U.N. body other
than the CERD. The failure to pressure India on the issue of caste
discrimination is a failure of the international human rights
regime.
VII. I
NTERNATIONAL
P
RESSURE FOR
C
ASTE
R
EFORM
As India has continued to resist the efforts of treaty bodies to
make suggestions and scrutinize the caste situation in India, there
have been moves from several countries to directly pressure India
to do more to combat caste issues. In 2007, both the European
Parliament and the U.S. House of Representatives passed resolu-
tions addressing the treatment of Dalits in India. While these reso-
lutions were somewhat tentatively worded, they indicate a first step
towards countries becoming more involved bilaterally with pressur-
ing India to eliminate caste discrimination.
The relevant European Parliament resolution was adopted in
February 2007.
227
In the resolution, the European Parliament tries
to create avenues through which the international community can
pressure India in several different ways.
228
First, the resolution
urges India to “engage further with relevant UN human rights bod-
ies on the effective elimination of caste-based discrimination.”
229
This statement indicates that the European Community believes
223. See generally Concluding Observations of the HRC: India, supra note 171.
R
224. Id. ¶ 6.
225. See id. ¶ 15.
226. Id.
227. See Resolution on the Human Rights Situation of Dalits in India, E
UR
. P
ARL
. D
OC
.
B6-0021 (2007).
228. See, e.g., id. ¶¶ 8-13.
229. Id. ¶ 6.
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572 The Geo. Wash. Int’l L. Rev. [Vol. 41
that India has been avoiding the oversight of the various U.N. orga-
nizations and treaty bodies. This resolution also directly calls for
some action from the Indian government.
230
The resolution notes
that the Indian National Commission on Human Rights has made
some suggestions regarding the issue that have yet to be adopted,
and the European Parliament calls for police reform to end police
discrimination against Dalits.
231
This direct referral to issues that
need to be addressed seems to be an attempt to limit India’s ability
to respond by pointing out legislative successes. Finally, this resolu-
tion notes the lack of E.U. dialogue with India regarding the prob-
lem of caste discrimination, and calls for such dialogue to be
initiated at every opportunity. Most importantly, the resolution
indicates that this dialogue should be included in some trade
discussions.
On July 23, 2007, the U.S. House of Representatives also adopted
a resolution addressing the issue of discrimination against Dalits in
India.
232
While this resolution was never introduced as legislation
or taken to the Senate, it still carries some significance. The resolu-
tion adopted by the House of Representatives in the United States
is slightly more muted than the one in Europe. It does not call for
India to further engage the international community on the issue,
but there are calls for the Indian government to take action.
233
Perhaps the most interesting aspect of the resolution is that it
speaks to the responsibilities of U.S. investors and those doing busi-
ness in India to not participate in or contribute to the problem of
caste discrimination.
234
India has not officially responded to the
U.S. resolution, yet an Indian diplomat was quoted as saying that
the European Parliament resolution was “lacking in ‘balance’” and
“unfortunate.”
235
While the response was dismissive, it is important to note the
references to economics in the resolutions. The E.U. resolution
hints at some desire to link Dalit rights to trade talks in some man-
ner, while the U.S. resolution indicates that U.S. businesses and
investors need to be aware of the problem. If these are the first
230. See, e.g., id. ¶¶ 4-7.
231. See id.
232. Expressing the Sense of the Congress that the United States Should Address the
Ongoing Problem of Untouchability in India, H.R. Con. Res. 139, 110th Cong. (2007) (as
passed by the House of Representatives, July 23, 2007).
233. See id. §§ 1, 8.
234. See id. §§ 5-6.
235. Nirmala Carvalho, European Parliament Criticises India for Abuses Against Dalits,
A
SIA
N
EWS
.
IT
, June 2, 2007, http://www.asianews.it/index.php?l=en&art=8412.
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2010] Ending Caste Discrimination in India 573
steps towards tying economics to reform in India regarding the
issue of caste discrimination, they may introduce a new policy
approach that could apply meaningful and effective pressure on
India to end caste discrimination. Nevertheless, there is little or no
possibility of an extensive regime of economic sanctions ever being
imposed on India. India is one of the fastest growing economies in
the world, and with its population of over one billion people, it
offers an enormous market with strong potential.
236
Few countries
would be willing to seriously restrict their trade relations with India
over caste discrimination. Thus, an extensive set of sanctions like
that adopted by the U.N. Security Council against South Africa
during its apartheid regime is extremely unlikely.
237
Yet, such a
strong measure is not necessary to be effective. If several major
economic powers increase the international scrutiny on India and
tie some economic issues to caste discrimination, there will be
added incentive for India to work towards rectifying the situation.
These approaches were arguably undermined when India’s
human rights system was subjected to universal periodic review in
2008. The HRC, in its final report on universal periodic review
undertaken on India on April 10, 2008, accepted India’s position
specifically on the ICERD and noted as follows:
India has been deeply conscious of the need to empower the
Scheduled Castes and Scheduled Tribes and is fully committed
to tackle any discrimination against them at every level. The
Constitution of India abolished “untouchability” and forbids its
practice in any form. There are also explicit and elaborate legal
and administrative provisions to address caste-based discrimina-
tion in the country. The caste system, which is unique to India,
is not racial in origin, and therefore, caste based discrimination
cannot be considered a form of racial discrimination.
238
Usefully, many countries questioned India on caste issues and
many recommendations were made in that regard. These include
the suggestion by Italy that India increase its human rights educa-
tion process to deal more effectively with gender and caste discrim-
ination.
239
Whether India accepts and implements these
suggestions remains to be seen. While it is important to note this
level of scrutiny during India’s universal periodic review, one must
236. See R
ICHARD
G
RABOWSKI ET AL
., E
CONOMIC
D
EVELOPMENT
: A R
EGIONAL
, I
NSTITU-
TIONAL
,
AND
H
ISTORICAL
A
PPROACH
174 (2006).
237. See generally D
AVID
C
ORTRIGHT
& G
EORGE
L
OPEZ
, T
HE
S
ANCTIONS
D
ECADE
: A
SSESS-
ING
UN S
TRATEGIES IN THE
1990
S
(2000).
238. U.N. Human Rights Council, Report of the Working Group on the Universal Periodic
Review of India, ¶ 15, U.N. Doc. A/HRC/8/26 (May 23, 2008).
239. See id. ¶ 53.
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574 The Geo. Wash. Int’l L. Rev. [Vol. 41
also conclude that the 2008 review did little if anything to increase
pressure on India to take definitive action to end caste
discrimination.
VIII. C
ONCLUSION
Even with India’s extensive legal protections for all citizens and
guarantees of equality, widespread caste discrimination persists.
Given the scope of the problem and the massive challenge it
presents, India has suffered from insufficient political will and insti-
tutional commitment to truly address the problem of caste discrim-
ination. India must undertake several major reform initiatives.
India should reevaluate its system of reservations and benefits.
240
Adjustments to the system need to de-emphasize the traditional
caste definitions in the methodology for identifying benefit recipi-
ents in order to limit the relevance of traditional caste identity.
Instead, emphasis should be placed on economic prerequisites so
that it is truly the most disadvantaged who benefit. These changes
should be coupled with a new wave of education campaigns both to
inform the victims of their rights and to increase knowledge of the
laws against discrimination to potential perpetrators. It is also vital
for India to begin a significant overhaul of its lower level courts
and local police to finally end all discrimination practiced by pub-
lic servants. Education campaigns for judges and police officials
should be complemented by meaningful sanctions taken against
those who violate the rights of any Indian citizens.
These measures would certainly be a major challenge for any
Indian government to undertake. India realizes this and therefore
most politicians prefer to avoid drastic action and instead deflect
criticism by referencing India’s progressive constitution and legal
protections of the disadvantaged to suggest that everything has
been done to solve the problem.
241
This lack of political will
presents the principal reason there is a need for greater interna-
tional engagement with India on the issue of caste. This is crucial,
as India has been able to avoid international scrutiny and serious
discussion on caste discrimination. The international community
must assail India with an honest and strict assessment of its failures
to combat caste, and its impact.
242
240. See K.S. C
HALAM
, C
ASTE
-B
ASED
R
ESERVATIONS AND
H
UMAN
D
EVELOPMENT IN
I
NDIA
168-70 (2007).
241. See Eisenman, supra note 9, at 182-84.
R
242. See K
EANE
, supra note 26, at 239.
R
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2010] Ending Caste Discrimination in India 575
Where India continues to resist, bilateral pressure from other
nations might be most effectively used. In the event that India con-
tinues to deny the CERD the right to review its performance on
caste, the international community must exert pressure so that
India will accept its obligations under the ICERD. As U.N. reform
is becoming a prominent topic for discussion, and India is regu-
larly mentioned for a seat on the Security Council, the interna-
tional community should make it clear that its support for India is
contingent on India permitting a complete review of the Indian
human rights situation. It is also essential that the U.N. General
Assembly, the U.N. Human Rights Council, and other interna-
tional and regional institutions consider and publicly discuss caste
discrimination and the challenges it presents. All of these mea-
sures will increase the scrutiny of India’s efforts to truly combat
discrimination. India is a democracy that values its international
reputation, and substantive criticism may help India develop the
political will necessary for the government to adequately address
the issue of caste discrimination.
There is also the potential for regional action from India’s
neighbors.
243
Many countries in the region suffer from similar
challenges in their own struggles against caste discrimination. If
solutions are found in India, there would be positive ramifications
for other countries in which the issue also occurs.
244
The creation
of a human rights body by the South Asian Association for
Regional Cooperation countries could provide significant assis-
tance in the struggle against caste discrimination.
245
Most of the
South Asian Association for Regional Cooperation countries also
have caste systems and face similar problems to those of India. If
these countries unite to combat caste, they might be more willing
to accept criticism and review from each other as countries with
shared obstacles. Furthermore, this type of commission could
review what practices and programs have worked in various coun-
tries, and through a common focus on this topic, discover the most
effective remedies to the problem.
243. See Jeremy Sarkin, Achieving Reconciliation in Divided Societies: Comparing the
Approaches in Timor-Leste, South Africa and Rwanda, Y
ALE
J. I
NT
L
A
FF
., Summer 2008, at 11-
28.
244. See also Jeremy Sarkin, The Role of Regional Systems in Enforcing State Human Rights
Compliance: Evaluating the African Commission on Human and People’s Rights and the New Afri-
can Court of Justice and Human Rights with Comparative Lessons from the Council of Europe and
the Organization of American States, 1 I
NTER
-A
M
. & E
UR
. H
UM
. R
TS
. J. 199 (2009).
245. See Jeremy Sarkin, Toothless Charter Will Hurt Asean Credibility, B
ANGKOK
P
OST
, Nov.
19, 2007, available at http://www.indonesia-ottawa.org/information/details.php?type=news
_copy&id=5057.
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576 The Geo. Wash. Int’l L. Rev. [Vol. 41
Caste discrimination shows no sign of dying a quiet death. As
activists and scholars have noted, “[t]he caste system is so deeply
entrenched in the Indian psyche” that drastic and decisive mea-
sures beyond the creation of legal equality must be taken.
246
With-
out a concerted and determined effort to end this practice, it will
not fade away. It remains clear that India, as well as other coun-
tries where the practice exists, need to generate a greater political
will to truly combat the problem.
247
The newly emerging norm of
the responsibility to protect (usually abbreviated as R2P) makes
this a necessity.
248
Not only should the practice be ended, but
those who have suffered from it ought to be given some form of
reparations.
249
While reparations would be controversial and
costly, it is necessary to ensure that some compensation is given to
people who have suffered from years of discrimination.
The international community has a significant role to play in
generating the political will to end it.
250
Through increased pres-
sure, scrutiny, and constructive review, the international commu-
nity can push India and others towards compliance with
international human rights norms and end the suffering of mil-
lions of people.
251
This will need sustained and ongoing pressure
if it is to be successful, but the lives of millions of people who have
endured this abuse around the world depend on it.
246. Thorat & Gokhale, supra note 3, at 34.
R
247. On the role of the state and citizens on human rights protection, see generally
H
UMAN
R
IGHTS
: T
HE
C
ITIZEN AND THE
S
TATE
(Jeremy Sarkin & William Binchy eds., 2001).
248. See Jeremy Sarkin, Humanitarian Intervention and the Responsibility to Protect in Africa,
in A
FRICA
S
H
UMAN
R
IGHTS
A
RCHITECTURE
45 (Daniel Zimbler & John Okopari eds., 2009).
See generally Jeremy Sarkin, The Historical Origins, Convergence and Interrelationship of Interna-
tional Human Rights Law, International Humanitarian Law, International Criminal Law and
Public International Law and Their Application Since the Nineteenth Century, 1 H
UM
. R
TS
. & I
NT
L
L. D
ISCOURSE
125 (2007).
249. See generally Jeremy Sarkin, The Coming of Age of Claims for Reparations for Human
Rights Abuses Committed in the South, 1 I
NT
L
J. H
UM
. R
TS
. 67 (2004).
250. See generally Jeremy Sarkin & Erin Daly, Too Many Questions, Too Few Answers: Recon-
ciliation in Transitional Societies, 35 C
OLUM
. H
UM
. R
TS
. L. R
EV
. 101 (2004).
251. On the role of the international community, see generally Jeremy Sarkin & Guilia
Dalco, Promoting Human Rights and Achieving Reconciliation at the International Level (Part 1),
10 L. D
EMOCRACY
& D
EV
. 69 (2006); Jeremy Sarkin & Guilia Dalco, Promoting Human Rights
and Achieving Reconciliation at the International Level (Part 2), 10 L. D
EMOCRACY
& D
EV
. 49
(2006).
Thesis
Political philosophers have produced a wide variety of competing theories of the perfectly just society, but they have paid less attention to the question of how perfect social justice is to be achieved or worked towards. This is especially odd because most, perhaps all, societies are unjust by any plausible yardstick. Let us call any attempt to advance social justice or remedy social injustice social justice activism. My aim in this dissertation is to develop a theory of social justice activism. I make three contributions in particular. First, I seek to establish the grounds of the duty to remedy social injustice. I argue that we should appeal to multiple principles to ground remedial duties. Second, I argue that, in order to understand how to remedy social injustice, we must first understand the different kinds of social phenomena that can underpin social injustice. I identify three such phenomena: laws, social norms, and stereotypes. Third, I consider how activism that aims to remedy social injustice underpinned by these three mechanisms should be practised, devoting a chapter to each one. Regarding law, I explore the ethics of activism that seeks to change the law via means that are either illegal or violent, and I argue that the practice of such activism is more morally constrained than is standardly assumed. Regarding social norms, I argue that law and policy will not always be sufficient to remedy injustice caused by social norms, and so ordinary citizens will sometimes need to intervene to change unjust social norms in ways that are not mediated by the state. Finally, because the operation of stereotypes is rather subtle and mysterious, I seek to better understand exactly how it is they generate social injustice. I then draw out some implications of this investigation for the practice of social justice activism.
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This book explores, through the lens of the conflict in Syria, why international law and the United Nations have failed to halt conflict and massive human rights violations in many places around the world which has allowed tens of millions of people to be killed and hundreds of millions more to be harmed. The work presents a critical socio-legal analysis of the failures of international law and the United Nations (UN) to deal with mass atrocities and conflict. It argues that international law, in the way it is set up and operates, falls short in dealing with these issues in many respects. The argument is that international law is state-centred rather than victim-friendly, is, to some extent, outdated, is vague and often difficult to understand and, therefore, at times, hard to apply. While various accountability processes have come to the fore recently, processes do not exist to assist individual victims while the conflict occurs or the abuses are being perpetrated. The book focuses on the problems of international law and the UN and, in the context of the many enforced disappearances and arbitrary detentions in Syria, why nothing has been done to deal with a rogue state that has regularly violated international law. It examines why the responsibility to protect (R2P) has not been applied and why it ought to be used, generally, and in Syria. It uses the Syrian context to evaluate the weaknesses of the system and why reform is needed. It examines the UN institutional mechanisms, the role they play and why a civilian protection system is needed. It examines what mechanism ought to be set up to deal with the possible one million people who have been disappeared and detained in Syria.
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Some groups more commonly experience negative effects from biases in the workplace than others, in part, from a lack of universal anti-discrimination protections. While strong protections exist for some groups, others are often left to rely on a patchwork of legal protections and corporate policies to guard against bias. This article draws from social identity, stigmatization, and intersectionality theories to bring attention to susceptible classes, or those individuals who are stigmatized by society but not effectively shielded against discrimination by workplace protections. This article advances the Employment Protections and Stigmatization Classification Model typology. This model provides categorization based on the level of stigmatization individuals face and the degree to which employment protections provided by various entities are effective in reducing workplace bias and discrimination. Further, it allows for consideration and comparison of stigmatized groups across time, jurisdictions, and organizations. Three stigmatized classes are offered as examples to advance further understanding of the model.
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In Nepal, just as in major parts of India and some other South Asian countries, the issue of untouchability still prevails. People even now face unjust discrimination on the basis of caste. They are prohibited from visiting public places such as temples and water taps. In this article, I have investigated the dichotomy of auspiciousness and untouchability faced by the Pariyars, one of the downtrodden caste groups of Nepal, also known as Damai. The music they create, compose and play is famous throughout the country which is popularly known as the Panchai Baja and Naumati Baja and is taken as auspicious. I adopted ethnographic research methods to obtain the qualitative data through in-depth interviews, participant observations and field notes from 21 research participants who were actively engaged in music. I have analysed the social relations and cultural identity in reference to auspicious music and untouchability faced by the Damai musicians of Nepal. The findings indicate that untouchability is an outcome of cultural hegemony, caste-based hierarchy and socio-economic order, fatalism and cultural reproduction despite modernity and social and political awareness among young people. This ethnographic study throws light upon the dichotomy of auspicious and untouchability through the lived experiences of the research participants.
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Third World Approaches to International Law [TWAIL] constitutes a significant method of analysis of contemporary international law. TWAIL as a methodological framework continues the tradition of critical scholarship in international law. Arguably it can be considered as a major methodological framework emerged in international law after the end of the cold war. Unlike some other critical traditions of international law scholarship, TWAIL claims to accommodate varying conceptual standpoints to reflect on international law critically. This feature of TWAIL scholarship seems to reflect the prevailing suspicion of conceptual metanarratives at the time when TWAIL as a methodological framework was emerging. A noteworthy feature of the TWAIL framework is that it broadly defines its field of analysis by claiming to represent the concerns of the global south. However, a dispassionate interrogation arguably reveals that TWAIL, despite coming as a response to the colonialist and post-colonial hegemonic frameworks of international law, does not seem to capture the concerns of all the margins. In other words, TWAIL does not seem to reflect the multitude of mainstream international law’s others in terms of their subjective participation in knowledge production as well as in terms of their lived experiences becoming subjects of analysis. An example of this in the South Asian context is the marginalization of peoples of lower castes and indigenous peoples, who are historically kept away from knowledge production and whose lived experiences only recently received the attention as subjects of serious analysis. TWAIL scholarship does not seem to reflect this glaring reality. An attempt is made to analyze the probable reasons behind this exclusion, looking at the social being of the TWAIL intellectual, and to emphasize on the need of the organic TWAIL intellectual.
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Reparações por violação dos direitos humanos e abusos humanitários constituem um desafio central tanto no âmbito doméstico como no internacional. Apesar dos novos avanços em relação à questão das indenizações pelos abusos cometidos, inúmeras violações ocorridas na África e em outros lugares, durante o período colonial, permanecem sem solução. Este artigo faz um resumo desses avanços e os contextualiza contra o pano de fundo de processos que têm sido movidos por africanos com o objetivo de obter reparação por abusos contra eles perpetrados no período colonial e durante o apartheid. Examinam-se aqui processos movidos por namibianos e sul-africanos nos Estados Unidos, nos termos do Alien Torts Claim Act e são analisadas outras leis, também em outras jurisdições. Procura-se assim identificar a probabilidade de êxito desses processos, à luz dos problemas legais que têm de enfrentar. Os contextos políticos dos processos também são examinados, bem como o porquê de as ações recaírem mais sobre as multinacionais do que sobre os Estados.
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The emergence and scope of international law, whether in treaties or in customary international law, is especially relevant to those seeking reparations for atrocities committed against indigenous populations during colonization. This article examines the origins, interrelationship, and dimensions of international law, the law of armed conflict, international human rights law, and international criminal law. It explores the time when these legal regimes came into being and when the protections accorded by them against various types of conduct became available. It is submitted that by the turn of the twentieth century many of these laws were already available and in force. While it is commonly held that international protections against human rights violations were activated in the post-World War II era, they actually were accessible much earlier. A specific focus of this article is the Martens Clause adopted into the Hague Conventions of 1899 and 1907. The Martens Clause it is argued constitutes one of the origins of international human rights law in the positivistic sense, and is considered applicable to the whole of international law, and has indeed shaped the development of customary international law. It will be shown that the Martens Clause is a specific and recognized provision giving protection to groups and individuals during both war and peace time. A further focus of this article is the origins and interconnectedness of concepts such as crimes against humanity and genocide. This article looks as the origins of these notions. It argues that they are tied to the origins of international human rights law and finds they existed at least in the ninetieth century, if not before.
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Understanding reconciliation in times of political transition raises fundamental and ultimately unanswerable questions about the human condition. Talk of reconciliation invariably comes after there has been some gross violation of norms: widespread disappearances, killings, torture, and rape. Reconciliation necessarily conjures its antecedents and forces us to ask how men (and sometimes women) can visit such horrors upon one another. When we look at the face of evil, are we, as many people contend, seeing ourselves, or on the contrary are some people capable of evil in a way that others would never approach? Reconciliation is perhaps deeply compelling, however, because it not only implicates the worst that human beings are capable of, but the best as well. Reconciliation embodies the possibility of transforming war into peace, trauma into survival, hatred into forgiveness; it is the way human beings connect with one another, against all odds. It exemplifies the potential for virtually limitless strength and generosity of spirit that is also immanent in human nature. This Article explores some of the questions that must be confronted when incipient governments promote reconciliation to palliate the ills of transition. In Part II, this article raises broad conceptual questions about reconciliation. Part III then examines the historical factors that have contributed to the spread of reconciliation initiatives throughout the world in recent years. In Part IV, we examine why nations pursue reconciliation and whether reconciliation can achieve the goals imputed to it. Finally, Part V looks at the mechanisms by which nations pursue reconciliation. This article concludes with suggestions for developing a further understanding of reconciliation.
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The paper starts with a description of the nature of the labour force in India and then briefly deals with the main features of the trade union movement since Independence. It then discusses the problems facing the working class, especially in the present period of structural adjustment and globalisation. The paper emphasises that proliferation of trade unions have weakened the working class movement in India and that, along with trade union unity, there is a need for closer links between labour in the organised and the unorganised sectors.
Article
This essay investigates the connection between humanitarian intervention and R2P within an historical, legal, and conceptual context. It challenges the widely held view that Africa lacks the capacity to intervene in areas of conflict and human rights violations, arguing instead that the continent possesses the will and instruments to protect human rights. The author notes that, while the UN Security Council retains the primary responsibility for promoting global peace and security, the R2P norm remains contested even within the UN. The ECOWAS interventions in Liberia and Sierra Leone in the 1990s were initially undertaken without UN approval, but were later sanctioned by the world body. These interventions undermined the idea of state sovereignty as independence from external interventions, which had previously constrained humanitarian missions in Africa. However, the essay argues that the R2P principle was boosted by the establishment of the International Criminal Court in 2002 to prosecute persons suspected of committing war crimes, crimes against humanity, and/or genocide. In addition, the intervention clause in the AU's Constitutive Act of 2000 supports the R2P principle while prohibiting unilateral interventions. Notwithstanding these developments, the author notes that the AU and Africa's regional bodies still have a long way to go in translating the R2P doctrine into practice.
Ending Caste Discrimination in India \\server05\productn\J\JLE\41-3\JLE301.txt unknown Seq: 15 17-JAN-11 12:32 2010] Ending Caste Discrimination in India \\server05\productn\J\JLE\41-3\JLE301.txt unknown Seq: 29 17-JAN-11 12:32 2010] Ending Caste Discrimination in India 230
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\\server05\productn\J\JLE\41-3\JLE301.txt unknown Seq: 7 17-JAN-11 12:32 2010] Ending Caste Discrimination in India \\server05\productn\J\JLE\41-3\JLE301.txt unknown Seq: 15 17-JAN-11 12:32 2010] Ending Caste Discrimination in India \\server05\productn\J\JLE\41-3\JLE301.txt unknown Seq: 29 17-JAN-11 12:32 2010] Ending Caste Discrimination in India 230. See, e.g., id. ¶ ¶ 4-7.
Promoting Human Rights and Achieving Reconciliation at the International Level (Part 2), 10 L
  • Jeremy Sarkin
Jeremy Sarkin & Guilia Dalco, Promoting Human Rights and Achieving Reconciliation at the International Level (Part 2), 10 L. DEMOCRACY & DEV. 49 (2006).
India's Lower Castes can now go to Private Schools, CHRIS-TIAN SCIENCE MONITOR
  • Anupreeta Das
Anupreeta Das, India's Lower Castes can now go to Private Schools, CHRIS-TIAN SCIENCE MONITOR, Feb. 13, 2006, available at http://www.csmonitor.com/2006/0213/ p04s01-wosc.html.