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Caste Discrimination and Minority Rights: The Case of India’s Dalits
Annapurna Waughray*
1. Introduction
India’s Dalits1 (formerly known as Untouchables) number over 167 million people,
around one sixth of India’s population.2 Dalit, a term of self-identification meaning
crushed or broken in Marathi (a regional language of south-west India) refers to
those people at the very bottom of India’s social hierarchy. A millennia-old system
of social stratification based on inherited status, caste3 is primarily associated
with South Asia (India, Nepal, Pakistan, Bangladesh and Sri Lanka) and its
diaspora.4 While caste and discrimination on grounds of caste are found amongst
South Asian adherents of Islam, Sikhism and Christianity as well as Hinduism,
doctrinal sanction for caste exists only in Hinduism. According to orthodox Hindu
creation mythology, society is divided into four broad hierarchical categories or
varnas traditionally linked to occupation or social function - Brahmins (priests),
Kshatriyas (warriors and rulers), Vaisyas (traders and artisans) and Shudras
(serfs and labourers).5 Outside and below the varna framework is a fifth group,
the Dalits. Alongside the varna system, Indian society is divided into
approximately three thousand jatis – geographically-based, hierarchically-ranked
1
*Senior Lecturer in Law, School of Law, Manchester Metropolitan University, UK. I thank Gaetano
Pentassuglia, Dominic McGoldrick, Damian Mather and Gulara Guliyeva for their comments on
earlier drafts of this paper.
In this paper I use the term Untouchable and the constitutional term Scheduled Caste (SC) as
well as the term Dalit depending on context, whilst recognising that Dalit is not adopted by all
members of former ‘Untouchable’ communities.
2Census of India 2001, Scheduled Castes and Scheduled Tribes Population, at
http://www.censusindia.gov.in/Census_Data_2001/India_at_glance/scst.aspx (visited on 14
November 2009).
3 From the Portuguese casta meaning species, race or pure breed ; see S. Bayly, Caste, Society
and Politics in Modern India from the Eighteenth Century to the Modern Age (Cambridge
University Press (CUP), Cambridge, 1998) pp. 105-06.
4 See UN Doc E/ CN.4/Sub.2/2004/31, 5 July 2004, 34-61; A. Waughray, ‘Caste Discrimination: A
Twenty-first Century Challenge for UK Discrimination Law?’ 72(2) Modern Law Review (2009) pp.
182219. Although not the only feature of South Asian social organisation, caste remains an
important mechanism of social classification.
5 See G. Flood, An Introduction to Hinduism (CUP, Cambridge, 1998) pp. 11-12, 48-49, 58-61.
1
kinship groups, the operational units of the caste system.6 As an ideological
construct caste has a number of defining features. There are only four varnas but
an indeterminate number of jatis, as groups may merge or subdivide. Varna
ranking is fixed and immutable, whereas contestation of jati ranking has always
occurred. Caste membership, and hence social status, is hereditary (determined
by birth) and not susceptible to alteration through personal effort; in all but
exceptional circumstances social mobility is dependent on the re-ranking of one’s
entire jati.7 Untouchability, whereby members of certain groups are considered
permanently and irredeemably ritually polluted and polluting such that all physical
and social contact with them must be avoided, serves both as a cause of and a
mechanism for social exclusion and material exploitation. Despite being a
notional construct, Untouchability is conceptualised in corporeal and immutable
terms as a permanent quasi-physical inherited characteristic which cannot be
shed or removed. Endogamy and the prohibition of commensality (sharing food
and drink) and the taking of water from ‘lower’ castes ensure the maintenance
and replication of the system.
Dalits in contemporary India experience stigmatisation, disadvantage,
discrimination and violence on grounds of their ascribed hereditary status as
‘Untouchable’,8 despite constitutional prohibitions of Untouchability and
discrimination on grounds of caste and the criminalisation of its worst
manifestations;9 yet it was not until the late 1990s that the situation of India’s
Dalits was taken up by UN human rights bodies and international non-
governmental organisations (NGOs).10 One of the first NGOs outside India to
6 The term caste refers both to the Hindu concept of varna and the South Asian concept of jati.
The Dalits are also subdivided into hierarchically-ranked jatis.
7See L. Dudley Jenkins, Identity and Identification in India: Defining the Disadvantaged
(RoutledgeCurzon, London, 2003) pp. 23-40 on ‘identity adjudication’.
8 See O. Mendelsohn and M. Vicziany, The Untouchables: Subordination, Poverty and the State
in Modern India (CUP, Cambridge, 1998) ; G. Shah, H. Mander, S. Thorat et al, Untouchability in
Rural India (Sage, New Delhi, 2006) ; K. B. Saxena, ‘Report on Prevention of Atrocities Against
Scheduled Castes: Policy and Performance - Suggested Interventions for NHRC’ (National
Human Rights Commission, New Delhi, 2004).
9 See Articles 14, 15, 16 and 17, Constitution of India 1950 (COI), http://lawmin.nic.in/coi.htm;
Protection of Civil Rights Act 1955, at http://www.socialjustice.nic.in/pcr-act.pdf; Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, at
http://www.socialjustice.nic.in/poa-act.pdf, (visited on 14 November 2009).
10 See C. Bob, ‘Dalit Rights are Human Rights: Caste Discrimination, International Activism and
the Construction of a New Human Rights Issue’ 29 Human Rights Quarterly (2007) pp. 167-193.
2
address the issue of caste discrimination was the UK-based Minority Rights
Group.11 Yet, as Castellino and Redondo observe, victims of caste discrimination
‘do not easily fit into the universally agreed category of a “minority”’.12 Neither do
they readily fit the international definition of an indigenous people.
Constitutionally and legally in India the Dalits are not classified as a minority.
Rather, as ‘Scheduled Castes’ (the constitutional, legal and administrative term
for the Dalits) they enjoy a constitutional status and constitutional protections
distinct from those groups officially recognised as minorities. India’s Constitution
provides for special measures in the form of affirmative action policies (known as
reservations) in higher education, State employment and political representation,
for three categories of beneficiaries – the Dalits or Scheduled Castes (SCs); the
adivasis or Scheduled Tribes (STs);13 and (to a lesser extent) the ‘Other
Backward Classes´ (OBCs), a category of less severely disadvantaged groups.14
This constitutional framework is characterised by a number of anomalies. Firstly,
minorities are excluded from the list of reservation beneficiaries. Although some
minority communities qualify for reservations as OBCs on grounds of their social
and educational backwardness, this is a ‘back-door’ route; they are not entitled to
the benefit of reservations qua minorities. Secondly, the SC (Dalit) category is
constitutionally restricted by religion to Hindus, Sikhs and Buddhists.15 As
11 See http://www.minorityrights.org/5652/india/dalits.html, visited on 24 May 2009. See also B.
Joshi (ed.), Untouchable! Voices of the Dalit Liberation Movement (Zed Books and Minority
Rights Group, London, 1986).
12 J. Castellino & E. Dominguez-Redondo, Minority Rights in Asia: A Comparative Legal Analysis
(Oxford University Press (OUP), Oxford, 2006) p. 58.
13 The Scheduled Tribes, numbering around 84 million or 8.2% of India’s population, are a
distinct social and legal category traditionally distinguished by tribal characteristics and cultural
and spatial isolation from the mainstream population; see M. Galanter, Competing Equalities:
Law and the Backward Classes in India (University of California Press, Berkeley, 1984) pp. 147-
153 and Census of India 2001, supra note 2. Although external to the caste system and not
defined by Untouchability or by religion, the STs also suffer severe discrimination and
depredations.
14 Other Backward Classes, or simply ‘backward classes’, is a constitutional term denoting a
third category of less severely socially and educationally backward groups, roughly corresponding
to the Shudras in the varna framework, who do not suffer from the stigma of Untouchability. The
term backward classes is also used generically to denote the SCs, STs and OBCs combined.
15 “[N]o person who professes a religion different from the Hindu, the Sikh or the Buddhist
religion shall be deemed to be a member of a Scheduled Caste”; see Constitution (Scheduled
Castes) Order 1950 (C.O. 19) para. 3, at http://lawmin.nic.in/ld/subord/rule3a.htm, (visited on 3
September 2009). Sikhs and Buddhists were originally excluded from the SC category (although
SC status was, exceptionally, extended to Sikh members of four specific castes; see Constituent
Assembly Debates of India (CAD) Vol. VIII, 25 May 1949, pp. 272, 311; see also Soosai v Union
3
minorities within minorities Muslim and Christian Dalits are widely recognised to
be more socio-economically and educationally disadvantaged than their non-Dalit
co-religionists, while suffering discrimination on grounds of caste at the hands of
both the wider community and their co-religionists.16 Yet they are excluded on
grounds of religion from the SC category and hence from accessing SC
reservations. Thirdly, reservations for the OBCs – a category which is not defined
by reference to religion - are narrower in scope than SC and ST reservations.
Hence, even where Muslim and Christian Dalits qualify for OBC reservations
their position is still not comparable to that of Hindu, Sikh and Buddhist Dalits.
Meanwhile, since the late 1990s, international law categories which were not
constructed with caste in mind have been called up to address caste
discrimination in the UN, while a new international legal category – discrimination
based on work and descent - which includes but is not limited to caste, has been
created. Strategically, Dalits have pursued minority rights, indigenous peoples
and anti-discrimination approaches before international forums, with some
success, but as this paper seeks to show, all three approaches are problematic
conceptually and/ or legally.
This paper is concerned with the characterisation of the Dalits in international
and Indian (national) law. Just as the SC category in national law does not reflect
the complexities of Dalit identity and caste discrimination in the twenty-first
century, so the international law categories which have been called up to
encompass victims of caste discrimination do not self-evidently, readily or
completely include them. The key features of caste and the key issues to be
addressed have been identified in this introduction. Part 2 discusses international
law standards and their applicability to the Dalits. Part 3 examines India’s
constitutional provisions on Dalits and minorities, tracing the origins, scope and
limitations of the constitutional categories. Part 4 offers a critique of these
of India (1985) SCR Supl. (3) 242, 247). Sikhs were added to the SC category in 1956 and
Buddhists in 1990.
16 See S. Deshpande, ‘Dalits in the Muslim and Christian Communities : A Status Report on
Current Social Scientific Knowledge’ (Govt of India (GOI), National Commission for Minorities
(NCM), New Delhi, 2008).
4
provisions in the context of the international standards identified in Part 2,
examining the tangled relationship between SC and minority status and religion
and considering proposals for change. The paper concludes by endorsing calls
for re-examination of the domestic legal categories encompassing victims of
caste discrimination in India and of the legal strategies for the elimination of such
discrimination, while arguing thatinternationally the Dalits constitute ‘a case
apart’,17 a sui generis category, and should be conceptualised as such within the
existing international frameworks where their grievances are presented. In the
longer term, a more targeted international approach to caste discrimination, for
example in the form of a new UN declaration or convention, is supported.
2. Caste discrimination and international law standards
Until the mid-1990s caste discrimination was absent from mainstream
international human rights discourse. Caste does not feature as a ground of
discrimination in any international human rights instrument and few people
outside caste-affected countries were aware of the existence of such
discrimination, while in post-independence India Untouchability and caste-based
discrimination were supposed to be eradicated by a raft of legal, administrative
and policy measures.18 The transformation of caste discrimination from ‘domestic
grievance’ into internationally-recognised human rights issue was largely due to
the persistence of Dalit activists in calling on the UN to take up this form of
discrimination as a violation of international human rights law.19 In seeking to
internationalise their plight, India’s Dalits have called up international anti-
discrimination mechanisms as well as minority rights and indigenous peoples’
mechanisms. These approaches are considered in turn below.
2.1 Dalit Rights as Minority Rights
International minorities protection predates by many years the
development of the contemporary international human rights movement20 yet
17 I. Ansari (ed.), Readings on Minorities: Perspectives and Documents, Vol. 1 (Institute of
Objective Studies, New Delhi, 1996) pp. xxi, xviii.
18 See Mendelsohn & Vizciany, supra note 8, p. 118.
19 See Bob, supra note 10.
20 P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1991)
pp. 25-37.
5
there is no universally-agreed, legally-binding definition of a minority and it has
not proved possible to transform the 1992 UN Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities21 (the
Minorities Declaration) into an international legally-binding instrument.
Nevertheless there is a general international consensus on a core definition of
‘minority’ which embraces non-dominant groups possessing stable ethnic,
religious or linguistic characteristics that differ sharply from those of the rest of
the population, which have been retained over time and which members of the
group wish to preserve.22 Article 27 of the International Covenant on Civil and
Political Rights 1966 (ICCPR)23 recognizes the right of persons belonging to
ethnic, religious or linguistic minorities, in community with members of their own
group, to enjoy their own culture, profess and practise their own religion and to
use their own language. According to the Human Rights Committee (HRC) the
persons designed to be protected under Article 27 are ”those who belong to a
group and who share in common a culture, a religion and/ or a language”. 24 The
Minorities Declaration extends this definition to include ‘national minorities’. In
international law the existence of a minority is a question of fact, to be
established by objective criteria independent of a group’s domestic status; non-
recognition as a minority at the national level – as in the case of the Dalits - does
not preclude a group’s characterisation as a minority at the international level.25
However India’s Dalits do not constitute a discernible ethnic, religious,
cultural or linguistic minority. The widely accepted position is that they are united
21 GA Res. 47/135 (1992).
22 F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic
Minorities (United Nations, New York, 1981) p. 96. See also G. Pentassuglia, Minorities in
International Law (Council of Europe, Strasbourg, 2002) p. 69; Minority Rights Group
International (MRGI), Submission to CERD on India with specific attention to Article 5 ICERD, 19
February 2007, FN ix, http://www2.ohchr.org/english/bodies/cerd/docs/ngos/MRG-report.pdf
(visited on 14 November 2009; W. Kymlicka, Multicultural Odysseys: Navigating the New
International Politics of Diversity (OUP, Oxford, 2007) p. 66-67 on the cultural and geo-political
origins of the concept of national minorities; UN Working Group on Minorities, UN Doc.
E/CN.4/sub.2/AC.5/2005/2, 4 April 2005.
23 Adopted 16 December 1966, entered into force 23 March 1976, 999 UNTS 171 ; Indian
ratification 10 April 1979.
24 HRC General Comment No. 23; UN Doc. CCPR/C/21/Rev.1/Add.5, 8 April 1994, 5.1.
25 Ibid, para. 5.2. See also Greco-Bulgarian Communities Case, PCIJ Series B, No. 17, 1930.
6
by a shared, ascribed socio-religious identity as Untouchable but otherwise
divided by region, language, religion, culture and ethnicity.26 The purpose of
minority rights is to safeguard and preserve those religious, linguistic and cultural
characteristics which distinguish minority groups from the majority population. 27
In contrast, as Ansari observes, Untouchability is an imposed and denigratory
mark of identity which, as a deeply discriminated group, the Dalits historically
have sought to shed or escape from rather than preserve.28 Dr. B. R. Ambedkar,
a gifted Dalit lawyer and campaigner for social justice who was to become the
Dalits’ most celebrated leader29 and, eventually, chairman of the Drafting
Committee of the 1950 Constitution of India (COI), fought for the eradication of
Untouchability and the annihilation of caste - not for its preservation.30 As a social
and political minority the Dalits constitute an ‘involuntary association’31 consisting
of individuals ascribed to a minority group ‘by some outside designation or
decision’32 and stigmatised as inferior.33 Yet as Dudley Jenkins points out, social
categories – even those which are oppressive – may be appropriated by
subordinated groups for their own strategic purposes as ‘tools of
empowerment’.34 Involuntary or ‘negative’ associations may thus be transformed
into ‘positive’ associations.35 The transformation of ascribed caste identity in India
into a form of positive ‘ethnic’ identity has been explored by Deepa Reddy,36 while
Ansari asks whether ‘in the process of shedding those undesirable features of
26 See for example Mendelsohn & Vizciany, supra note 8.
27 See UN Working Group on Minorities, UN Doc. E/CN.4/Sub.2/AC.5/2005/2, 4 April 2005, 21-
29.
28 Ansari, supra note 17, p. xviii.
29 See C. Jaffrelot, Dr Ambedkar and Untouchability: Analysing and Fighting Caste’ (Permanent
Black, New Delhi, 2005); see also E. Zelliot, From Untouchable to Dalit: Essays on the Ambedkar
Movement (Manohar, New Delhi, 1998).
30 See B. R. Ambedkar, ‘The Annihilation of Caste’ in V. Moon (ed.), Babasaheb Ambedkar
Writings and Speeches (BAWS) Vol. 1 (Govt of Maharasthra, Bombay, 1989).
31 S. Wiessner, ‘Faces of vulnerability: protecting individuals in organic and non-organic groups’
in G. Alfredsson & P. Macalister-Smith (eds.) The Living Law of Nations: Essays on Refugees,
Minorities, Indigenous Peoples and the Human Rights of Other Vulnerable Groups (Arlington Va.,
Kehl, 1996) p. 221, cited in J. Packer, ‘Problems in Defining Minorities’ in B. Bowring & D. Fottrell
(eds.) Minority and Group Rights in the New Millennium (Kluwer Law International, The Hague,
1999) p. 257. See also Thornberry supra note 20, pp. 9-10.
32 Wiessner, ibid.
33 L. Sunga, TITLE 3 International Journal of Group Rights (1995) p. 79, cited in Packer, supra
note 31, p. 255.
34 Dudley Jenkins, supra note 7, p. 110.
35 See Packer, supra note 31, p. 285. See also Zelliot, supra note 29.
7
[an] externally imposed identity’ Dalits might retain features of their Dalitness -
although he does not expand on what Dalitness might consist of.37 If the Dalits as
a pan-Indian category do not readily meet the international understanding of a
minority group, the notion of the Dalits as an indigenous people is also
problematic. It is to this notion that we now turn.
2.2 Dalits as Indigenous Peoples
Ambedkar rejected the argument that castes constituted separate racial groups
with distinct racial and cultural identities, arguing that ‘the caste system came into
being long after the different races in India had commingled in blood and
culture.’38 Yet the sense of an indigenous peoples’ identity permeated eighteenth
and nineteenth century colonial writing on caste.39 It was called up in the
Constituent Assembly – the body established by the British in 1946 to draft a
Constitution for independent India and to act as an interim government pending
its adoption40 – and has been pursued since the 1990s as part of the Dalits’
international strategy41 although Ambedkar himself was non-committal on the
question of Dalit indigeneity.42 The Dalits do not constitute a coherent group
defined by the key characteristics of the indigenous peoples’ category - historical
or traditional occupation of lands or territories; use of and control over resources;
36 D. Reddy, ‘The Ethnicity of Caste’, 78 Anthropological Quarterly (2005) pp. 543-573. The
conceptualisation of caste as ethnicity has also been raised within CERD; see UN Doc.
CERD/C/SR.1796, 2 March 2007, 38.
37 Ansari, supra note 17, p. xviii. On the creation/ re-creation of Dalit-ness see B. Narayan,
‘Demarginalisation and History: Dalit Re-invention of the Past, 28(2) South Asia Research (2008)
169-184; B. Narayan, ‘Inventing Caste History: Dalit Mobilisation and Nationalist Past’, 38(1 & 2)
Contributions to Indian Sociology (2004) 193-220.
38 Ambedkar, supra note 30, p. 48.
39 See Bayly, supra note 3, pp. 97-186 ; D. Keane, Caste-Based Discrimination in International
Human Rights Law (Aldershot, Ashgate, 2007) pp. 31-37.
40 ‘We the Depressed Classes are the original inhabitants of this country. We do not claim to
have come to India from outside as conquerors, as do the Caste Hindus and the Muslims’; P. R.
Thakur , CAD Vol. 1, 19 December 1946, p. 40, cited in H. S. Saksena, Safeguards for
Scheduled Castes and Tribes: Founding Father’s Views – An Exploration of the Constituent
Assembly Debates (Uppal, New Delhi, 1981) p. 6.
41 See P. Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous
Peoples and Caste/Descent-Based Discrimination’ in J. Castellino & N. Walsh (eds. International
Law and Indigenous Peoples (Koninklijke Brill, Leiden, 2005) pp. 17-52, 18. See also V. T.
Rajshekar, Dalit: The Black Untouchables of India (Clarity Press, Atlanta Ga., 2003).
42 See B. R. Ambedkar, ‘Evidence Before the Simon Commission’ in BAWS Vol. 2 (The
Education Dept, Govt. of Maharasthra, Bombay, 2005) p. 465.
8
distinct cultural and religious traditions, customs and ceremonies; and distinct
histories, philosophies, languages, and institutions.43 Nevertheless, aspects of
the criteria relating to cultural and religious traditions overlap with the experience
of some Dalit religious communities,44 while the resurgence and/ or creation of a
distinct Dalit identity finds expression in the Dalit Panthers and Dalit writers’
movements of the 1970s and 1980s and in the writings of dalit-bahujan45
intellectuals and activists such as Kancha Illaiah.46 Strategically, utilisation of the
indigenous label, with its promise of access to targeted rights,47 has been a
powerful political tool and has widened the international forums available to the
Dalits – although Kymlicka warns in general terms that the strategic adoption of
the indigenous peoples’ label by minorities as a ‘back-door’ route to recognition
and rights is ‘not sustainable’ and undermines the international system of
indigenous rights,48 while Thornberry questions whether pursuing an indigenous
peoples’ strategy might detract from the Dalits’ ‘distinctive and powerful’
discrimination case.49
2.3 Caste discrimination as a violation of international human rights law
2.3.1 International Convention for the Elimination of All Forms of Racial
Discrimination 1965 (ICERD)
ICERD50 defines racial discrimination in Article 1(1) as
any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life.
43 UN Declaration on the Rights of Indigenous Peoples 2007; UN Doc. A/Res/61/295.
44 See for example R. Lamb, Rapt in the Name: The Ramnamis, Ramnam, and Untouchable
Religion in Central India (State University of New York Press, Berkeley, 2002).
45 Bahujan means majority, referring to the Shudras who are estimated to constitute up to half of
India’s population.
46 See for example K. Ilaiah, Why I Am Not A Hindu (Samya, Calcutta, 2002).
47 Kymlicka, supra note 22, pp. 286-87.
48 Ibid.
49 Thornberry (2005a), supra note 41, p. 18.
50 Adopted 21 December 1965, entered into force 4 January 1969, 660 UNTS 195. Indian
ratification 3 December 1968.
9
In 1996 CERD affirmed that caste discrimination is a form of racial discrimination
captured by Article 1(1) ICERD as a sub-category of discrimination based on
descent,51 a position it has since repeatedly reaffirmed, in 2002 issuing General
Recommendation 29 condemning descent-based discrimination - including
discrimination based on forms of social stratification such as caste and
analogous systems of inherited status - as a violation of ICERD.52 CERD’s
utilisation of descent to address caste discrimination has been challenged,
particularly by India, despite CERD’s observations that ICERD is a ‘living
instrument that must be interpreted and applied taking into account the
circumstances of contemporary society’.53 Descent was included in ICERD at the
behest of India in response to disagreement over the meaning of ‘national
origin’,54 but its intended meaning and scope are not clear from the travaux
preparatoires. The inclusion of descent in Article 16(2) COI as a prohibited
ground of discrimination in public employment, distinct from caste, suggests that
India did not intend descent in Article 1(1) ICERD to include caste. 55 However,
while caste was not discussed during the drafting of Article 1(1), it was discussed
in relation to the drafting of Articles 1(4) and 2(2) on temporary special measures
which provide for or require States to take special measures for the development
and protection of certain racial groups or individuals belonging to them. These
51 CERD/C, concluding observations on India’s ninth to fourteenth reports, 22 August 1996; UN
Doc. CERD A/51/18 (1996), 352.
52 See CERD General Recommendation 29, 22 August 2002; UN Doc. A/57/18 (2002). See also
CERD, concluding observations on India’s fifteenth to nineteenth reports, 5 May 2007; UN Doc.
CERD/C/IND/CO/19, 8 ; P. Thornberry, ‘Confronting Racial Discrimination : a CERD Perspective’,
5 Human Rights Law Review (2005) 239-269, 264.
53 See CERD/C General Recommendation No. 32, August 2009, 5.
54 See GA Third Committee, 1299th meeting, 11 October 1965; UN Doc A/C.3/SR.1299, 29.
55 See D. Keane, ‘Descent: A Legal History’, 11 International Journal of Minority and Group
Rights (2005) pp. 93-116 in which Keane traces the origins of the descent category to its inclusion
in Article 16(2) COI following an intervention in the Constituent Assembly in 1948 by Shri Raj
Bahadur. In fact the term descent predates the COI by over a century, appearing in the Charter
Act 1833 as a prohibited ground of discrimination in employment with the East India Company:
‘[N]o Native of the said Territories, nor any natural-born Subject of his majesty resident therein,
shall, by reason only of his Religion, Place of Birth, Descent, Colour, or any of them, be disabled
from holding any Place, Office, or Employment under the said Company’; Charter Act 1833 S. 87.
The term reappears in the Government of India Act 1935 Part XII S. 298, and again in Article
366(2) COI which defines an Anglo-Indian as ‘a person whose father or any of whose other
progenitors in the male line is or was of European descent but who is domiciled within the territory
of India and is or was born within such territory of parents habitually resident herein and not
established there for temporary purposes only’. For a legal history of S. 87 of the Charter Act
1833 see A. Lester & G. Bindman, Race and Law (xxx)
10
provisions were included in ICERD, according to the Indian representative to the
drafting Committee
in order to provide for special and temporary measures to help certain groups of people,
including one in his own country, who, though of the same racial stock and ethnic origin
as their fellow citizens, had for centuries been relegated by the caste system to a
miserable and downtrodden condition.56
Throughout the 1970s and 1980s India’s reports to CERD contained
information on the situation of the SCs and STs and the special measures in
place for their upliftment, yet CERD appeared to oscillate between uncertainty as
to the applicability of ICERD tothese groups and tacit acceptance that they did
fall within its ambit.57 It was not until 1986 that India expressed the view, orally,
that they did not.58 In 1996 and again in 2006 India affirmed its view that caste
cannot be equated with race or covered under descent under Article 1(1) of
ICERD.59 That CERD struggled in its early days to grapple with an issue which
appeared to have little in common with the anti-colonialism and anti-apartheid
agenda which had originally inspired ICERD is evident from the pre-1996 CERD
documents.60
In 2009 CERD issued General Recommendation 32 (GR 32) on the
meaning and scope of special measures, including affirmative action policies
such as India’s reservations.61 Much of GR 32 is directly relevant to India.
Special measures are to be understood as goal-related, time-limited rights for the
56 Mr. Saksena, GA Third Committee, 1306th meeting, 15 October 1965; UN Doc. A/C.3/SR.1306,
24-25. See also 1304th meeting, 14 October 1965, 20.
57 See UN Doc. CERD/C/SR.33, 56 ; UN Doc CERD/C/SR.51, 142 ; Fifth Periodic Report of
India : UN Doc. CERD/C/20/Add.34, 8 March 1979, 40, 45-68 ; Ninth Periodic Report of India; UN
Doc. CERD/C/149/Add.11, 4 September 1986, 8.
58See UN Doc. CERD/C/SR.797, 61. Similarly, India does not recognise its tribal peoples as
distinct groups entitled to special protection under ICERD ; see UN Doc. CERD/C/IND/CO/19, 5
May 2007, 10.
59 See UN Doc. CERD/C/299/Add. 3, 29 April 1996, 7; UN Doc. CERD/C/IND/19, 29 March
2006, 16
60 On the genesis of ICERD see Thornberry (2005b), supra note 52, p. 241. In 1986 CERD
member Mr Bantom observed that ‘[c]onsideration of a report from a country such as India
showed that the Convention had been drafted to take account of the experience of the peoples of
Europe, Africa and North America, and that it was therefore not adapted to the examination of
inter-group relations in other parts of the world’; see UN Doc. CERD/C/SR.796, 26.
61 Supra note 53.
11
development and advancement of groups or individuals belonging to such
groups, distinct from the permanent human rights pertaining to certain categories
of person or community (e.g. minorities or indigenous peoples, who may also
enjoy the benefits of special measures). Such measures are not an exception to
the principle of non-discrimination but are integral to its meaning and do not
constitute discrimination when taken for the sole purpose of ensuring equal
enjoyment of rights and freedoms62 - a point made in 1948 by T. K. Shah in the
Constituent Assembly in relation to India’s policies for the SCs.63 The need for,
design and implementation of special measures should be based on accurate,
disaggregated gender-sensitive data, and they should respect the principle of
fairness.64 Significantly, if a State chooses special measures, these must be non-
discriminatory.65 In keeping with evolving CERD experience and practice, GR 32
notes that the grounds of discrimination are extended in practice by the notion of
intersectionality, where discrimination on grounds such as gender or religion
appears to exist in combination with a ground or grounds listed in Article 1.66
2.3.2. UN Sub-Commission on the Promotion and Protection of Human
Rights
In 2000 caste discrimination was declared a form of discrimination prohibited by
international human rights law by the former Sub-Commission on the Promotion
and Protection of Human Rights, as a subset of a new international legal
category, discrimination based on work and descent,67 which encompasses caste
and similar systems of inherited status affecting groups in other parts of the
world, for example the Burakumin in Japan. Three expert reports on
discrimination based on work and descent were subsequently commissioned, in
2001, 2003 and 2004, which identified the existence of such discrimination
62 Ibid., 15, 20, 21, 27, 34.
63 T. K. Shah, CAD Vol. VIII, 29 November 1948, p. 655.
64 Supra, note 53, para. 17.
65 Ibid., 7.
66 Ibid.
67 UN Sub-Commission, Resolution 2000/4, 11 August 2000; UN Doc. E/CN.4/Sub.2/2000/46,
23 November 2000.
12
worldwide.68 In 2005 the former Commission on Human Rights appointed two
Special Rapporteurs to investigate the phenomenon of discrimination based on
work and descent, its nature and extent and to produce a set of Draft Principles
and Guidelines for its effective elimination.69 Published by the Human Rights
Council in 2009,70 the Draft Principles strongly condemn ‘discrimination based on
work and descent, including discrimination based on caste and analogous
systems of inherited status, as a violation of human rights and international
law’.71
The work and descent terminology was adopted to encompass caste and
analogous systems worldwide, thereby locating caste discrimination within a
global human rights category without targeting any specific State, religion or
culture. However, the conceptualisation of caste discrimination as a subset of a
new, wider international legal category, and the broad nature of the category,
mean that caste is not fully acknowledged as a distinct, sui generis ground of
discrimination requiring a distinct and targeted response at the international level.
Meanwhile, since 1996, India has consistently rejected CERD’s interpretation of
descent, arguing that descent in Article 1(1) refers only to race whereas caste is
based on social distinctions, not race, and cannot be equated with race or
covered under descent.72 CERD, whilst accepting that caste is not race,
maintains that discrimination on grounds of caste is fully covered by ICERD as a
form of descent-based racial discrimination.73
2.3.3 Multiple discrimination, intersectionality and de facto/ de jure
equality
Caste as a ground of discrimination is increasingly addressed by UN treaty
bodies in contexts where it may exist in combination with other grounds, for
68 UN Doc. E/CN.4/Sub.2/2001/16, 14 June 2001; UN Doc. E/ CN.4/Sub.2/2003/24, 26 June
2003 ; UN Doc. E/CN.4/Sub.2/2004/31, 5 July 2004.
69 UN Doc. E/CN.4/DEC/2005/109.
70 UN Doc. A/HRC/11/CRP.3, 18 May 2009.
71 Ibid.
72 See CERD, fourteenth periodic report of India; UN Doc. CERD/C/299/ Add.3, 29 April 1996, 6-
7; CERD, nineteenth report of India: UN Doc. CERD/C/IND/19, 29 March 2006, 16.
73 See UN Doc. CERD/C/IND/CO/19, 5 May 2007, 8.
13
example gender or religion (as in the case of Dalit converts to Islam or
Christianity who, unlike Buddhist or Sikh converts, lose their entitlement to SC
reservations).74 The Committee for the Elimination of Discrimination Against
Women has identified caste as a major obstacle to the implementation of the
International Convention for the Elimination of Discrimination Against Women
1979 (CEDAW),75 with Dalit women and girls suffering extreme gender-based
and sexual violence and gender-related discrimination on grounds of caste.76
Meanwhile, CERD has highlighted the gap between the formal abolition of
Untouchability and caste discrimination in India and the continuance of
substantive or de facto discrimination,77 while caste has been identified as an
obstacle to de facto equality in the enjoyment and exercise of human rights under
the CRC, the ICCPR and the ICESCR.78
3. Dalits and minorities: India’s constitutional categories
This Part discusses India’s constitutional provisions on Dalits and minorities. The
provisions are outlined and the historical origins and practical consequences of
the constitutional distinctions between the two categories are explained.
3.1 Constitutional Provisions
3.1.1 Equality and Non-Discrimination
The COI establishes India as a Sovereign, Socialist, Secular, Democratic
Republic.79 Articles 14-31 COI guarantee various individual Fundamental
Rights, corresponding to civil and political rights, to all citizens. Article 14
guarantees equality before the law while Article 15(1) prohibits discrimination on
grounds of religion, race, caste, sex or place of birth. Article 17 abolishes
Untouchability (although not the caste system per se) and criminalises its
74 Ibid., 15, 18, 21.
75Adopted 18 December 1979, entered into force 3 September 1981, 1249 UNTS 13. Indian
ratification 9 July 1993.
76 See UN Doc. CEDAW A/55/38 (2000), 52, 68, 74; UN Doc. CEDAW/C/IND/Co.3, 2 February
2007, 8, 28, 29, 32, 33.
77 See UN Doc. CERD/C/IND/CO/19, 5 May 2007, supra note 73.
78 See UN Doc. CRC/C/15/Add.228, 26 February 2004, 22, 25, 28, 59, 65 ; UN Doc. CCPR
A/52/40 (1997), 430 ; UN Doc. E/C.12/IND/CO/5, 8 August 2008, 13, 14, 19, 25, 53,
79 Preamble, COI 1950. The words ‘Socialist, Secular’ were added after ‘Sovereign’ by the
Constitution (Forty-second) Amendment Act 1976, S.2.
14
practice in any form, while Articles 16(1) and 16(2) respectively guarantee
equality of opportunity and prohibit discrimination on grounds of religion, race,
caste, sex, descent, place of birth, or residence in public employment or State
office. Social and economic rights are incorporated in Articles 39-51 as ‘Directive
Principles of State Policy’ which must be applied by the State in making laws.80
Article 46 singles out the SCs and STs, directing the State to ‘promote with
special care the educational and economic interests of the weaker sections of the
people, and, in particular of the Scheduled Castes and Scheduled Tribes’ and to
‘protect them from social injustice and all forms of exploitation’.
3.1.2 Protection of minorities
Cultural and educational rights are guaranteed in Articles 29 and 30 COI, and
freedom of religion in Articles 25-28. Article 29 provides that groups with a distinct
language, script or culture shall have the right to conserve them and prohibits
denial of admission into any State-maintained or State-aided educational
institution on grounds of religion, race, caste, or language. Article 30 guarantees
the right of religious and linguistic minorities to establish and administer their own
educational institutions and prohibits discrimination in the granting of State aid to
such institutions. In 1992 a statutory body, the National Commission for
Minorities (NCM), was established to ensure the development of minorities –
defined by the National Commission for Minorities Act 1992 (NCMA) as ‘a
community notified as such by the Central government’81 - and to safeguard their
rights.82 Five communities have been centrally notified as minorities - Muslims,
Christians, Sikhs, Buddhists and Zoroastrians (Parsis)83 - notwithstanding the fact
that Article 25 COI guaranteeing freedom of conscience and religion subsumes
80 Article 37 COI.
81 NCMA S.2(iii), http://ncm.nic.in/ncm_act.html , (visited on 25 June 2009).
82 NCMA S.3(i) and S.9.
83NCM, Annual Conference of State Minorities Commissions, 16 January 2008; see
http://ncm.nic.in/pdf/Agenda%202%20SMC.pdf, (visited on 25 June 2009). 189.5 million people
or 18.4 percent of India’s total population belong to a minority community. Muslims number 140
million or 13.4 percent of the total population and 72.8 percent of the minority population,
Christians constitute 2.3 percent of the total population, Sikhs 1.9 percent, Buddhists 0.8 percent
and Parsis 0.07 percent; figures from 2001Census cited in NCM, Annual Conference of State
Minorities Commissions, ibid.
15
Sikhs, Jains and Buddhists within Hinduism.84 While States are free to accord
special treatment to their religious or linguistic minorities, only Central
government can notify a community as a statutory minority under the NCMA.85
3.1.3 Affirmative Action: Reservation Policies for the SCs, STs and OBCs
Affirmative action in public employment and higher education originates in the
special measures for ‘non-Brahmins’ introduced by certain Princely states from
the early twentieth century,86 while reserved seats, or quotas, in the national and
provincial legislatures originate in British concessions to the Muslims around the
same time.87 The COI mandates reservations for SCs and STs (but not OBCs) in
political representation at local, provincial and national level on the basis of their
population share.88 Article 15(4) authorises (but does not mandate) ‘special
provision for the advancement of any socially and educationally backward
classes of citizens or for the SCs and STs’,89 enabling the reservation of seats in
State higher education institutions for SCs and STs and, since 2006, for OBCs 90
and in private educational institutions other than minority institutions covered by
Article 30(1).91 Article 16(4) authorises (but does not mandate) reserved posts in
public sector (but not private sector) employment for ‘any backward class of
citizen which, in the opinion of the State, is not adequately represented in the
84 ‘In sub-clause (b) of clause (2) the reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaina or Buddhist religions, and the reference to Hindu
religious institutions shall be construed accordingly’; Article 25(2)(b) COI, Explanation II.
85 NCMA S.9. The NCM has no power to notify or even to recommend a community as a
minority. The unit for determining linguistic or religious minority status is the State, not the whole
of India. Numerical minority cannot be the sole criteria; protection as a minority must be based on
the community’s social, cultural and religious conditions in each State ; see Bal Patil v Union of
India (2005) AIR 3172.
86 Mendelsohn & Vizciany, supra note 8, pp. 129-130.
87 Ibid. See also Galanter, supra note 13, p. 25 ; B. Shiva Rao, The Framing of India’s
Constitution : A Study (Indian Institute of Public Administration, New Delhi, 1968) p. 3 ; S.
Wolpert, A New History of India, Eighth Edition (OUP, Oxford, 2009) pp. 288-9.
88 Articles 330, 332, 243-D(1)(a), and 243-T(1) COI. One-third of SC/ST local council seats are
reserved for SC/ST women and one-third of local council seats for women generally; see Articles
243-D(2) and (3) and 243-T(2) and (3). Enabling provisions also exist for the political
representation of Anglo-Indians at State and national level ; see Articles 331 and 333 COI.
89 Article 15(4) COI was inserted by the Constitution (First Amendment) Act 1951 S.2 following
the Supreme Court’s decision in State of Madras v Champakam Dorairajan (AIR 1951 SC 226).
90 See Central Educational Institutions (Reservations in Admissions) Act 2006, enacted pursuant
to the Constitution (Ninety-third) Amendment Act 2005.
91 See Article 15(5) COI, inserted by the Constitution (Ninety-third) Amendment Act 2005 S.2.
16
services under the State’; this provision has enabled the reservation of posts for
SCs and STs in provincial and Central government services92 and for OBCs in
provincial and (since 1993) in Central services.93 There is no constitutional
minimum or maximum level for reservations in higher education and public
employment, but a 50 percent ceiling was set by the Supreme Court in 1964 in
Devadasan v Union of India 94 and confirmed in 1993 in Indra Sawhney v Union
of India,95 on the grounds that reservations above this level would violate the
fundamental constitutional principles of equality and non-discrimination. The
reservation quota for SCs is set at 17 percent, and for STs at 7.5 percent96 –
roughly their percentage of the overall population – while reservations for the
OBCs have been capped by the Supreme Court at 27 percent (probably less
than their percentage of the population), such that the combined reservation
quota for the three categories does not exceed 50 percent.97 Thus, the COI
affords minorities freedom of religion and ‘identity rights’ but they are not entitled
qua minorities to the benefit of reservations, while Muslim and Christian Dalits
are specifically excluded on grounds of religion from SC reservations. We turn
now to the origins of these distinctions.
3.2 The Construction of Categories
3.2.1 Ambedkar and the Construction of the Untouchables
Until the early twentieth century the Dalits were not conceptualised as a pan-
Indian category, nor was the extent of their oppression a matter of public or
national concern except to caste reform activists.98 The rhetorical potential of the
92See Articles 335 and 16(4) COI. Article 16(4)A, inserted by the Constitution (Seventy -seventh)
Amendment Act1995 S. 2, extends reservations in government posts to promotions for SCs and
STs but not OBCs.
93 Prior to the Supreme Court decision in Indra Sawhney v Union of India (1992) AIR SC 477,
States were free to grant State-wide backward class reservations in State sector employment at
their discretion, but there were no Central OBC reservations.
94 Devadasan v Union of India AIR 1964 SC 179.
95 Indra Sawhney, supra note 93.
96 Galanter, supra note 13, p. 86.
97 Indra Sawhney, supra note 93. Article 16(4)B, inserted by the Constitution (Eighty-first)
Amendment Act 2001 S.2 allows for ‘roll-over’ for a maximum of three years of unfilled vacancies
under Articles 16(4) and16(4)A and their exclusion from the 50 percent ceiling on the total number
of yearly vacancies.
98 See Mendelsohn & Vicziany, supra note 8, p. 2. See also G. Omvedt, Dalits and the
Democratic Revolution: Dr Ambedkar and the Dalit Movement in Colonial India (Sage, New Delhi,
17
term ‘Untouchability’ - coined around 1909 to describe the particular, ritual
discrimination suffered by the Dalits99 - was identified by Ambedkar who
transformed the term Untouchable from a description into a name designating an
all-India political identity and a new social and legal category.100 In the two
decades prior to independence Ambedkar ensured that the concepts of
‘Untouchablility’ and ‘Untouchable’ became ‘embedded in Indian understanding
of the structure of their society’ and ultimately embodied in the Constitution.101
3.2.2 Untouchability and the Construction of the Scheduled Castes
The term ‘Scheduled Castes’ was created by the Government of India Act 1935
to identify by means of an official list, or Schedule,102 those disadvantaged and
socially-excluded castes – previously termed ‘Depressed Classes’ by the British -
eligible for special electoral representation.103 The Schedule was incorporated
into the COI and has remained in use ever since. The COI defines SCs in Article
366(24) as ‘such castes, races or tribes or parts of or groups within such castes,
races or tribes as are deemed under Article 341 to be Scheduled Castes for the
purposes of this Constitution’. Article 341 empowers the President of India, after
consultation with State Governors, to notify by Order in relation to each State
those castes or groups to be deemed to be SCs in relation to that State; 104
thereafter they can be de-listed only by Parliament. Currently over eleven
hundred castes are Scheduled.105 Scheduled status is established by means of a
Caste Certificate issued by the authorities attesting to the bearer’s membership
1994); W. Radice (ed.), Swami Vivekananda and the Modernisation of Hinduism (OUP, New
Delhi, 1999); Zelliot, supra note 29; Galanter, supra note 13, pp. 29-30.
99 See S. Charsley, ‘Untouchable: What is in a Name’, 23(1) Journal of the Royal Anthropological
Institute (1996).
100See Charsley, ibid, p. 9. While the existence of the Untouchables was not new, nevertheless
in the category of Untouchable something new was constructed: see Mendelsohn & Vizciany,
supra note 8, p. 21.
101 Charsley, supra note 99.
102 The Government of India (Scheduled Castes) Order 1936.
103 Galanter, supra note 13, p. 130. See also Dudley Jenkins, supra note 7, p. 14.
104 See Constitution (Scheduled Castes) Order 1950, supra note 15. A caste may be
‘scheduled’ in one State but not in another, resulting in differing abilities to benefit from
constitutional or legislative protection.
105 Ibid.
18
of a Scheduled Caste.106 The list has changed little since the original Schedule
was drawn up by the British in 1936, the basis for inclusion in which was
Untouchability107 - measured not according to ‘secular’ disadvantages such as
poverty or illiteracy but according to the extent of social disabilities accruing from
low social and ritual status in the traditional Hindu social hierarchy (although
almost total synchronicity existed between ritual disabilities and socio-economic
deprivation).108 In 1931 the Census Commissioner, J.H. Hutton, attempted to
specify the criteria by which Untouchable groups could be identified, such as
whether the caste in question pollutes high-caste Hindus by contact or proximity,
or is debarred from using public roads or wells or from the use of Hindu
temples,109 but it proved impossible to devise an all-India test due to different
regional practices.110 The Constituent Assembly endorsed the abolition of
Untouchability but left the concept undefined.111 However, the understanding was
of a ritual, status-based characteristic grossly damaging both to the individual
and to society, giving rise to a unique type of social stigma and discrimination
which is distinct from discrimination on other grounds, for example religion. 112
Crucially, Untouchability was seen uniquely as a function of caste; an
amendment by a Muslim member that “no-one shall on account of his religion or
caste be treated or regarded as an ‘untouchable’” was rejected by the
Assembly.113
3.2.3 Constructing the Untouchables as a Minority Group
106 A similar mechanism is used to establish ST and OBC status. The Schedule mechanism has
given rise to a body of ‘adjudication jurisprudence’; see Dudley Jenkins, supra note 7.
107Untouchability has its origins in early India ; see V. Jha, ‘Candala and the Origin of
Untouchability’ in A. Parasher-Sen (ed.), Subordinate and Marginal Groups in Early India (OUP,
New Delhi, 2004) pp. 157-209; P. V. Kane, History of Dharmasastra (Ancient and Medieval
Religious and Civil Law) Volume I (Poona: Bhandarkar Oriental Research Institute, 1930).
108 Galanter, supra note 13, pp. 122, 135.
109 Ibid., pp.128.
110 Ibid, pp. 127-8.
111 See CAD Vol. III 29 April 1947; CAD Vol. VII 29-30 November 1948, pp. 664-669.
112 See Dr. Monomohon Das, CAD Vol. VII, 29 November 1948, p. 666.
113 Mr Ahmad, CAD Vol. VII, 29 November 1948, p. 669 (emphasis added).
19
Ambedkar was determined to link Untouchable emancipation from caste
oppression with India’s emancipation from the British.114 Central to his strategy
was the assertion that the Untouchables were a minority group, ‘distinct and
separate from the Hindus’,115 entitled to recognition ‘as a separate entity for
political and constitutional purposes.’116 Gandhi by contrast insisted that the
Untouchables should not be separated politically from the Hindu fold, a prospect
which he viewed as damaging to Hindu unity and therefore to the nationalist
movement and the struggle for swaraj (independence).117 In 1946 the Constituent
Assembly was established.118 Assembly members were to be elected from the
three main ‘communities’ recognised by the British – Muslim, Sikh and ‘general’,
the latter to include all persons who were not Muslims or Sikhs, 119 with an
Advisory Committee on Minorities and Fundamental Rights (the Minorities
Committee) to report on measures for the protection of minorities.120 Ambedkar,
concerned to ensure Untouchable representation in the Assembly and on the
Minorities Committee as a separate political minority rather as a sub-group within
the Hindus, sought, unsuccessfully, a declaration from the British that ‘minorities’
included the SCs. Clement Atlee, the British Prime Minister, wrote privately to
Ambedkar saying “[w]e ourselves consider the Scheduled Castes to be an
important minority which should be represented on the Minority Advisory
Committee” - but he was unwilling to dictate to the Assembly the composition of
the Minorities Committee.121 In the event, the SCs and STs, as well as Christians,
Parsis, Anglo-Indians122 and women, were brought into the Constituent Assembly
by Jawarharlal Nehru’s Congress Party – India’s biggest political party - under
114 See Keane, supra note 39, p. 2.
115 B. R. Ambedkar, What Congress and Gandhi Have Done To The Untouchables: BAWS Vol. 9
(The Education Dept, Govt of Maharasthra, Bombay, 1991) p. 181. Galanter in a footnote notes
that, as late as 1910, Hindu political opinion was still very divided as to whether the Untouchables
should ‘count’ as Hindus or not; see Galanter, supra note 13, p. 26, fn 24.
116 Ambedkar, BAWS Vol. 9, ibid., p. 54
117 Ibid., p. 87. See also D. Nesiah, Discrimination With Reason ? (OUP, New Delhi, 1989) pp.
44-45; Galanter supra note 13, pp. 31-32; Zelliot, supra note 29, pp. 166-7.
118 See above.
119 See B. Shiva Rao, The Framing of India’s Constitution : Selected Documents, Vol 1 (The
Indian Institute of Public Administration, New Delhi, 1966) pp. 209-24, 214.
120 Ibid, p. 216.
121 S. Ajnat (ed.), Letters of Ambedkar (Bheem Patrika Publications, Jalandhar, 1993) pp. 154,
157.
122 See Article 366(2) COI and fn 55, supra.
20
the ‘general’ category.123 Ambedkar was duly elected to the Assembly and
appointed to the Constitution’s Drafting Committee (of which he was elected
Chair), the Minorities Committee, and the Minorities Sub-Committee.
3.3. Social Justice for the Dalits, Identity Rights for the Minorities
The COI distinguishes between religious, linguistic and cultural minorities and the
SCs, STs and OBCs, affording affirmative action measures only to the latter. Yet
this distinction had not originally been envisaged. In July 1947 the Minorities
Committee had recommended reserved seats in the legislatures for
Untouchables, Muslims and (in modified form) for Indian Christians, together with
a general proviso that, in making public appointments, provincial and central
government should ‘keep the claims of minorities in mind’, consistent with
efficiency of administration.124 These proposals were incorporated into the draft
Constitution. By 1949, however, reservations in the legislatures for religious
minorities had been dropped. The trigger for this volte face was the partition of
India on religious grounds on 15 August 1947 into the separate states of India
and Pakistan and the carnage and destruction which ensued. In May 1949 the
Minorities Committee in its final Report recommended that “the system of
reservation for minorities other than Scheduled Castes in Legislatures be
abolished”.125 The main argument was the importance of the secular principle
and the danger that religion-based divisions posed to national unity.126 Against
the backdrop of heightened Hindu-Muslim tensions following partition, the
Committee considered it “no longer appropriate in the context of free India and of
present conditions that there should be reservation of seats for Muslims,
Christians, Sikhs or any other religious minority”.127 According to Sardar Patel
(the Committee’s Chair) the impetus for the revised recommendation had come
123 G. Austin, The Indian Constitution: Cornerstone of a Nation (OUP, New Delhi, 1966) p. 12. In
January 1947 the Muslim League announced their withdrawal from the Assembly; see Wolpert,
supra note 87, pp. 361-3.
124 Shiva Rao (1966), supra note 119, pp. 754-7.
125 CAD Vol. VIII, 25 May 1949, Appendix A, 311.
126 See Z. Hasan, Politics of Inclusion: Castes, Minorities and Affirmative Action (OUP, New
Delhi, 2009) p. 24
127 CAD Vol. VIII, 25 May 1949, supra note 125.
21
from the Committee’s minority members themselves who, in the interests of
laying down ‘genuine foundations of a secular State’, had chosen to relinquish
reservations for religious minorities.128 Not all the Assembly’s Muslim members
were happy with the revised recommendation. Mohammed Ismail Sahib
disputed that it represented the views of the Muslim community, urging the
retention of reserved seats in the legislatures for Muslims and even a return to
the principle of separate Muslim electorates.129 But the recommendation was
adopted. In contrast, the ‘almost unanimous’ opinion of the Minorities Committee
was that reserved seats for the SCs should be retained on grounds of their
economic, social and educational backwardness - but for a period of ten years
only.130 In this way a ‘major break’ took place separating religious minorities “from
the discourse of disadvantage and social justice that dominated the discussion
about lower castes”.131 In August 1949 Ambedkar as Chair of the Drafting
Committee proposed an amendment to the draft Constitution according
preferential treatment in public sector appointments to the SCs and STs only, in
lieu of the vaguely-worded proviso agreed in 1947.132 After an ‘acrimonious
debate’133 with particular opposition from Sikh and Muslim Assembly members,
Ambedkar’s amendment was eventually accepted.
Ambedkar’s skill lay firstly in his construction of the SCs as a minority
distinguished from both the Hindus and the religious minorities; and secondly in
his securing special measures for the Dalits as a minority group despite their
falling outside the traditional ethnic, religious or linguistic parameters of the
128 CAD Vol. VIII, 25 May 1949 pp. 270-272.
129 Ibid. p. 277. Separate electorates had been accorded to the Muslims by the British in 1909
on the basis of their identity as a separate religious community; see Galanter, supra note 13, p.
25; Shiva Rao (1968), supra note 87, p. 3; S. Wolpert, supra note 87, pp. 288-9.
130 CAD Vol. VIII, supra note 123, p. 270. Nehru favoured dropping reservations altogether but
accepted arguments in relation to the SCs - who he described as backward groups, not a
religious minority – for time-limited reservations; see CAD Vol VIII, 26 May 1949, p. 331. The
initial ten-year period has been repeatedly extended, most recently in August 2009, and it is
difficult to envisage the circumstances in which any political party could abolish reservations in
the forseeable future.
131 Hasan, supra note 126, p. 21
132 In 1948 Ambedkar had opposed the principle of reservations for SCs in education, on the
grounds that it might result in educational segregation; see CAD Vol. VII, 29 November 1948, p.
661. Reservations for SCs in employment had been rejected by the Minorities Committee in 1948
by one vote: see CAD Vol. VII, 29 November 1948, p. 687.
133 Shiva Rao (1966), supra note 119, p. 777.
22
minority category. In 1947 in response to arguments that the SCs were not a
minority, Ambedkar contended that this meant
that the Scheduled Castes are more than a minority and that any protection given to the
citizens and to the minorities will not be adequate for the Scheduled Castes.134
Ambedkar’s characterisation of the SCs as a ‘minority-plus’ did not go
unchallenged. In the Assembly debates on minority safeguards, K. M. Munshi
pointed out that under international law the minorities label was restricted to
racial, religious and linguistic minorities; the SCs, he said, were neither a racial
nor a linguistic minority and certainly not a religious minority as they were ‘part
and parcel of the Hindu community’, therefore they were not minorities in the
strict meaning of the term, and any safeguards given to them as minorities were
‘illogical’ and should be available only until such time as they were completely
absorbed within the Hindu community.135 However the characterisation of the
SCs as a distinct and distinctly oppressed segment of society – a minority in a
historical and political sense - was widely accepted in the Assembly and was the
basis for awarding reservations to them, while withholding reservations from the
religious minorities.136
From a social inclusion perspective the Indian academic and NCM
member Zoya Hasan criticises the denial of reservations to the religious
minorities.137 Ultimately, however, it was ‘[t]he creation of Pakistan and India’s
decision to remain a secular state [which] undermined the case for continued
constitutional reservations for Muslims or other religious minorities’.138 Thus it
was that religious minorities emerged from the Constitution-making process with
‘identity rights’ in the shape of religious, linguistic and cultural protection but
134 B. R. Ambedkar, ‘States and Minorities - Memorandum to the Constituent Assembly on behalf
of the All-India Scheduled Castes Federation’ in BAWS Vol I, supra note 30, p. 383.
135 CAD Vol. V, 27 August 1947, p. 248. A Minorities Sub-Committee member had distinguished
political minorities ‘from permanent national, religious and cultural minorities requiring special
safeguards such as Muslims, Sikhs, Indian Christians and Anglo-Indians, these groups being akin
to groups in Central and Eastern Europe, the denial of whose rights had led to the Minorities
Treaties following World War I’; see I. Ansari (ed.) Readings on Minorities: Perspectives and
Documents, Vol. 2 (Institute of Objective Studies, New Delhi, 1996) pp. 220-1.
136 CAD Vol. V, 27 August 1947, p. 217
137Hasan, supra note 126, p. 5-8.
138 Nesiah, supra note 117, p. 63.
23
minus the special measures they had enjoyed under British rule, while the SCs
emerged with the guarantee of special measures in education, employment and
political representation; but this compartmentalization failed to take account of
Dalits who were also members of a religious minority. Part 4 now turns to
examine the inconsistencies at the heart of the SC category.
4. Critique
Although caste and Untouchability are doctrinally associated only with Hinduism,
distinctions and discrimination on grounds of caste are found among adherents
of Islam, Christianity and Sikhism despite the absence in these religions of
doctrinal support for caste. Conversion to these religions theoretically offers an
escape from caste oppression,139 yet pre-conversion caste status commonly
follows converts and their descendents into their new religion.140 This was
acknowledged in the Constituent Assembly, at least in relation to the Sikhs,
during discussions on including low-caste Sikh converts in the SC category. 141 Yet
despite India’s assertions before CERD that caste is a social rather than a
religious (or racial) phenomenon,142 the constitutional framework treats caste as a
feature of Hindu social organization. The purpose of reservations for the SCs
was to redress historical inequalities arising out of Untouchability or ritually
polluted status - a Hindu ideological construct. On these grounds SC status was
restricted to Hindus.143 In 1956 SC status was extended to Sikhs and in 1990 to
Buddhists – both faiths comprising large numbers of ex-Untouchables and their
descendents – by (administratively) subsuming these faiths within Hinduism.144
Muslim and Christian Dalits, however, remain excluded from the net. The
consequence for Dalits of conversion to Islam or Christianity is the loss, for
themselves and their descendents, of SC status and entitlement to the benefit of
139 Ambedkar himself famously declared in 1935 that he would not die a Hindu. In 1956, shortly
before his death, he led a mass conversion of Dalits to Buddhism; see Zelliot, supra note 29, pp.
126-136.
140 See Ansari (1996b), supra note 135, pp. xviii – xix.
141 CAD Vol VIII, 25 May 1949, p. 271. See also fn 15, above.
142 See UN Doc. CERD/C/299/Add.3, 29 April 1996; UN Doc. CERD/C/SR/141, 132, 6; UN Doc.
CERD A/9018 (1973), 238.
143 See fn 15, above.
144 Ibid.
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reservations, leading to calls to extend the constitutional provisions for SCs to
Muslim and Christian Dalits. These groups argue that they suffer the same
hereditary social disabilities and exclusion on grounds of Untouchability as their
Hindu counterparts, and that the denial of SC status to them is a historical
anomaly and amounts to religious discrimination contrary to Articles 14 and 15
COI. They appear to have the support of CERD which in 2007 specifically
recommended that eligibility for affirmative action benefits be restored to all
members of SCs and STs having converted to religions other than Sikhism or
Buddhism, in accordance with ICERD Articles 2(2) and 5(d) (vii).145
4.1 Muslim and Christian Dalits
In 2008 the NCM commissioned a Report on Dalits in the Muslim and Christian
communities (the Deshpande Report).146 The objective of the study was to
establish the material and social status of Muslim and Christian Dalits; to
compare their situation with that of the non-Dalit segments of their own
communities and the Dalit segments of other communities; and to establish
whether their disabilities justify state intervention.147 The Report concluded that,
irrespective of religion, Dalits are worse off materially, socially and educationally
than non-Dalits.148 On the crucial question of Untouchability the study found that
Muslim and Christian Dalits are socially known and treated as distinct groups
within their own religious communities and are invariably regarded as ‘socially
inferior’ communities by their co-religionists. Universally-practised forms of
discrimination and exclusion include social, cultural and occupational
segregation, economic exploitation and endogamy. Significantly, the study found
that in most social contexts Muslim and Christian Dalits “are Dalits first and
145 See UN Doc. CERD/C/IND/CO 19, 5 May 2007, supra note 73, 21.
146 Deshpande, supra note 16. The Report states that about 1 per cent of Muslims and around
10 percent of Christians are Dalits (although the true proportion of Dalit Christians is thought to be
between 50 and 75 per cent) while Dalits constitute over 23 percent of Hindus, 85 percent of
Buddhists and almost 35 percent of Sikhs; pp. 22-23, 25.
147 Deshpande, ibid., pp. 2-5.
148 Deshpande, ibid., pp. 28-9. Dalit Sikhs were found to be the most affluent of all Dalits. Dalit
Muslims have more in the poor and less in the affluent category than Dalit Christians but are
broadly comparable to all other Dalits except Sikhs.
25
Muslims and Christians only second.”149 The Report concludes that there is “no
compelling evidence to justify denying SC status to Muslim and Christian Dalits”;
on the contrary there is ‘a strong case’ for according them such status.150
4.2 Judicial Perspectives
On the question of whether Muslim and Christian Dalits can or should be
included in the SC category, India’s courts accept that caste is retained on
conversion to religions with no scriptural sanction for caste.151 At this point we
must distinguish between caste in the communitarian sense of community or
group identity – what Galanter terms the ‘concrete’ sense of caste as a social unit
designating a section or segment of the population152 - and caste in the ‘abstract’
sense of status, rank, or position.153 The issue is not whether caste identity in the
concrete sense is retained on conversion, for the courts accept that it can be, but
whether the social disabilities accruing from membership of an ‘Untouchable’
caste also continue.154 Do converts continue to experience the ritual, status-
based discrimination and social exclusion associated with Untouchability? This
was the issue facing the Supreme Court in 1985 in the leading case of Soosai
which raised the question whether the 1950 Constitution (Scheduled Castes)
Order was invalid on grounds of religious discrimination because only Hindu or
Sikh members of the castes enumerated in the Schedule were deemed to be
SCs for the purposes of the Constitution. The court held:
To establish that ... the Constitution (Scheduled Castes) Order 1950 discriminates
against Christian members of the enumerated castes it must be shown that they suffer
from a comparable depth of social and economic disabilities and cultural and
educational backwardness and similar levels of degradation within the Christian
community necessitating intervention by the State under the provisions of the
Constitution. It is not sufficient to show that the same caste continues after conversion. It
149 Ibid., p. 78.
150 Ibid., pp. 81, 83.
151 See for example Soosai v Union of India, supra note 15, 248; S. Anbalagan v B. Devarajan
1984 SCR (1) 973; K. Sonkar v Smt. Maya Devi 1984 SCR (2) 176.
152 Galanter, supra note 13, pp. 190-92, referred to in Deshpande, supra note 15, p. 66.
153 L. Havanur, ‘Specifying the Backward Classes without the “Caste” Basis’ (Mysore State
Backward Classes Welfare Association, Bangalore, 1965) p. 60, cited in Galanter, supra note 13,
p. 190, fn 4.
154 Soosai v Union of India, supra note 15, 250.
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is necessary to establish further that the disabilities and handicaps suffered from such
caste membership in the social order of its origin - Hinduism - continue in their
oppressive severity in the new environment of a different religions community.155
In addition to retention of caste identity, Muslim and Christian Dalits must
be able to show that on grounds of their relative caste status they are worse off
materially and socially than their non-Dalit co-religionists, and that their status is
comparable to that of Hindus, Sikhs and Buddhists currently included in the SC
category.156 Crucially, the test is not material deprivation alone, but
Untouchability. Moreover, there is a threshold; caste-related disabilities (i.e.
Untouchability) must continue in their ‘oppressive severity’ in the new religious
environment. In Soosai the court found insufficient evidence that this was the
case. Significantly, the Court did not suggest that the concept and practice of
Untouchability was restricted to Hinduism. Rather, the existence of
Untouchability among non-Hindus was treated as a factual question, subject to a
threshold test as indicated. In theory, then, it is possible that members of Muslim
or Christian Dalit communities could establish that they are on the receiving end
of sufficiently oppressive caste-related treatment to warrant categorisation as
SCs. At the time of writing the matter is still not settled legally or politically, and
special measures for SCs remain constitutionally restricted to Hindus, Sikhs and
Buddhists.
4.3 Religious Minorities as OBCs – a route to special measures?
Meanwhile, the OBC category offers a ‘back-door’ route to reservations for
Muslims and Christians including Dalits. Article 340 provides for the appointment
of a National Commission for Backward Classes (NCBC) to investigate the social
and educational conditions of the backward classes and make recommendations
for their improvement. The Constitution lacks a definition of backward classes or
criteria for identifying them. The question of how, and on what basis,
backwardness should be determined has made the OBCs the most controversial
155Ibid. (emphasis added).
156 Deshpande, supra note 16, pp. 65-68.
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of the three categories of reservation beneficiaries. Two ad-hoc Backward
Classes Commissions appointed in 1953 and 1979 failed to resolve this
question.157 In 1993 the NCBC was created as a statutory body charged with
providing binding advice to central government on the groups to be included in a
Central list of backward classes,158 identified on the basis of statutory guidelines
relating to the social, educational and economic status of the caste/community in
question.159 Unlike SC status, OBC status is decoupled from religion, such that
minority religious communities meeting the statutory criteria may be classified as
OBCs. Where a caste/ community is included in the Central list, this is
irrespective of the religious affiliation of its members.160 However, as we have
seen, the applicable spheres of reservation for OBCs are narrower than for SCs
and STs - higher education (since 2006) and employment in provincial and (since
1993) Central State services, but not the legislatures. Moreover, pursuant to
Sawhney the socially, educationally and economically uppermost members of the
OBCs (known as the ‘creamy layer’) are excluded from reservations.161
4.4 Recent developments
In 2006 a Government Report on the Social, Economic and Educational Status of
the Muslim Community of India (the Sachar Report) found high levels of socio-
economic and educational disadvantage among India’s Muslims.162 Although only
1 percent of Muslims are Dalits, almost 41 percent are categorized as OBCs, and
Muslims comprise almost 16 percent of India’s total OBC population.163 A 2007
157See Report of the First Backward Classes Commission 1953 (‘Kalelkar’ Report) (New Delhi,
GOI, 1955); Report of the Second Backward Classes Commission 1980 (‘Mandal’ Report) (New
Delhi, GOI, 1980). A legal challenge to the proposed implementation in 1990 of the Mandal
Report recommendations for national-level OBC reservations in public sector employment and
higher education resulted in the 1992 Supreme Court decision in Sawhney in favour of national-
level OBC reservations in public employment but not education.
158National Commission for Backward Classes Act (NCBCA) 1993 S.9 and S.9(2), at
http://ncbc.nic.in/html/ncbc.html (visited on 14 November 2009).
159See National Commission for Backward Classes, http://ncbc.nic.in/html/guideline.html (visited
on 14 November 2009).
160 Ibid.
161 Ibid.
162GOI, ‘Social, Economic and Educational Status of the Muslim Community of India’ (GOI,
Cabinet Secretariat, New Delhi, 2006).
163 Ibid., 213.
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Report by an ad-hoc Commission for Religious and Linguistic Minorities set up to
determine the criteria for identification of, and to recommend measures for the
welfare of, socially and economically backward sections among religious and
linguistic minorities recommended the total de-coupling of SC status from religion
and the classification as SCs of all those groups among the excluded religions
whose counterparts among the Hindus, Sikhs and Buddhists are so classified. 164
Given the overall reservation ceiling of 50 percent, any increase in reservation
beneficiaries would have to be absorbed within existing quotas, a prospect
opposed by elements of both existing beneficiaries and non-beneficiaries
opposed to any extension of reservations.165 Reservations have for decades
dominated Indian discourse on equality and social justice, and dropping them
completely would be politically impossible. However, the Sachar Report signaled
a new approach to equality and diversity. Rather than extending reservations to
religious minorities it recommended, firstly, the establishment of an Equal
Opportunity Commission (EOC) to investigate and pursue through legal action
allegations of discrimination or denial of equal opportunity in protected fields, and
to prescribe and monitor equal opportunity practices;166 secondly, the
mainstreaming of diversity via a ‘diversity index’ to monitor and secure equal
opportunity to all socio-religious categories in specified spheres of activity; thirdly,
the creation of a National Data Bank to remedy the deficit of disaggregated data
long identified by scholars and activists. Two expert reports were commissioned
by government on these proposals.167 In a marked shift away from India’s
established equality strategies, the EOC Report acknowledges that eliminating
disadvantage for particular identity groups involves more than abandoning
explicitly discriminatory laws and instituting formal equality but rather, focussing
on non-discrimination and equality in their broadest sense, reflecting the
164 The ‘Misra Report’, yet to be officially published. The relevant paragraphs are 16.3-16.4.
165 See S. Ghildiyal, ‘Govt in a fix on quota proposal’, Times of India, 14 October 2007 and ‘Dalit
converts not entitled to quota’, Times of India, 8 December 2007.
166 See EOC Report 2008, http://minorityaffairs.gov.in/newsite/reports/eoc_wwh/eoc_wwh.pdf
(visited on 3 September 2009), p. 32.
167 See Diversity Index Report 2008,
http://minorityaffairs.gov.in/newsite/reports/di_expgrp/di_expgrp.pdf (visited on 3 September
2009); see also EOC Report, ibid.
29
emphasis of international human rights law on de facto rather than simply de jure
equality.
5. Conclusions
India’s constitutional and legal framework distinguishes between the Dalits, or
SCs, on the one hand and minorities on the other, the former benefiting from
special measures in employment, education and political representation while the
latter do not. Despite evidence that Untouchability practices and discrimination
on grounds of caste have permeated religions lacking doctrinal sanction for
caste, SC status is restricted to Hindus and to adherents of Sikhism and
Buddhism (religions which have been ‘legally re-absorbed as Hinduism’).168
Muslim and Christian Dalits are thus ineligible on religious grounds for SC status
and special measures, leading to claims of religious discrimination and demands
for the extension of SC status to these groups, who in turn constitute minorities
within minorities, disadvantaged on grounds of caste within their own
communities. CERD has recommended the granting of SC status and
associated benefits to all Dalits irrespective of religion, but India rejects the
conceptualisation of caste as a ground of discrimination covered by ICERD.
Elsewhere the ‘ethnicisation’ of caste has been referred to,169 but this does not
mean that caste identity readily equates to ethnic identity, and internationally,
despite the Dalits’ utilisation of minorities mechanisms, it remains the case that
caste does not fit comfortably within the accepted ethnic/ religious/ linguistic
minority paradigm. Outside this paradigm, international law has been reluctant to
treat sociological minorities, for example sexual minorities, as ‘candidates for
inclusion in the category of protection of minorities’.170 The case of the Dalits
raises questions about the international definition of minorities and legal and
political responses to ‘new’ forms of discrimination. Since the late 1990s caste
discrimination has been recognised as a violation of international human rights
law as a form of descent-based racial discrimination under ICERD and as a sub-
category of discrimination based on work and descent. While these categories
168 Dudley Jenkins, supra, note 7, p. 120.
169 Supra, fn 36.
170 N. Shaw, ‘The Definition of Minorities’ in Y. Dinstein & M. Yabory (eds.) The Protection of
Minorities and Human Rights (Martinus Nijhoff Publications, Dordrecht, 1992) p. 22.
30
have enabled international human rights bodies to engage with the problem of
caste discrimination, such discrimination might be more effectively addressed by
the conceptualisation of caste as a sui generis category as in India, thereby
opening up the possibility, eventually, of a UN declaration or convention on caste
as suggested by the UN High Commissioner for Human Rights.171
171 See B. Crossette, ‘Putting Caste on Notice’, The Nation, 26 October 2009,
http://www.thenation.com/doc/20091109/crossette (visited on 14 November 2009).
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