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E/CN.4/Sub.2/2001/16
14 June 2001
COMMISSION ON HUMAN RIGHTS
Sub-Commission on the Promotion and Protection of Human Rights
Fifty-third session
Item 5 of the provisional agenda
PREVENTION OF DISCRIMINATION AND PROTECTION OF INDIGENOUS
PEOPLES AND MINORITIES
Working paper by Mr. Rajendra Kalidas Wimala Goonesekere on
the topic of discrimination based on work and descent, submitted
pursuant to the Sub-Commission resolution 2000/4
Contents
Paragraphs Page
Introduction 1-7
I. Communities where discrimination based on work and
descent is experienced 8-44
A. India 9-27
B. Sri Lanka 28-36
C. Nepal 37-39
D. Japan 40-42
E. Pakistan 43-44
II. Violations against women and children 45-47
III. Concluding remarks 48-50
Introduction
1. At its fifty-second meeting the Sub-Commission for the
Promotion and Protection of Human Rights in resolution 2000/4
declared that discrimination based on work and descent is a form
of discrimination prohibited by international human rights law
and decided to entrust Mr. Rajendra Kalidas Wimala Goonesekere
with the task of preparing, without financial implications, a
working paper on the topic of discrimination based on work and
descent in order:
(a) To identify communities in which discrimination based on
occupation and descent continues to be experienced in practice;
(b) To examine existing constitutional, legislative and
administrative measures for the abolition of such discrimination;
and
(c) To make any further concrete recommendations and proposals
for the effective elimination of such discrimination as may be
appropriate in the light of such examination.
The present report is submitted in accordance with that
decision.
2. The Universal Declaration of Human Rights states "All
human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood" (art. 1). In article 2
it is expressly stated that everyone is entitled to all the
rights and freedoms without distinction of any kind "such as
race ... national or social origin, property, birth or other
status".
3. Like other forms of discrimination, therefore, any
distinction, exclusion, restriction or preference based on work
and descent which has the purpose or effect of nullifying or
impeding the recognition, enjoyment or exercise by all persons,
on an equal footing, of all rights and freedoms contravenes the
spirit and letter of international human rights law.
4. The International Covenant on Civil and Political Rights
recognizes that all persons are entitled to the equal protection
of the law "without any discrimination" (art. 26). The
International Convention on the Elimination of All Forms of
Racial Discrimination specifically prohibits discrimination based
on "descent" which the Committee on the Elimination of
Racial Discrimination (CERD) has interpreted to mean not solely
race but tribal or caste distinctions as well. In its General
Recommendation No. XIV CERD stated that "in seeking to
determine whether an action has an effect contrary to the
Convention, it will look to see whether that action has an
unjustifiable disparate impact upon a group distinguished by
race, colour, descent or national or ethnic origin"
(HRI/GEN/1/Rev.4, p. 144(E), para. 2).
5. The International Covenant on Economic, Social and Cultural
Rights recognizes the right of everyone "to gain his living
by work which he freely chooses or accepts". (art. 6, para.
1).
6. The International Labour Organisation Discrimination
(Employment and Occupation) Convention, 1958 (No. III) calls on
States to "eliminate discrimination based on race …
national extraction or social origin", in the matter of
employment or occupation. The UNESCO Convention against
Discrimination in Education of 1960 asserts the principle of
non-discrimination in education based on "race …
national or social origin, economic condition or birth".
7. Discrimination based on work and descent is a long-standing
practice in many societies throughout the world and affects a
large portion of the world’s population. Discrimination
based on descent manifests itself most notably in caste – or
tribe – based distinctions. These distinctions, determined
by birth, result in serious violations across the full spectrum
of civil, cultural, economic, political and social rights.
Likewise, the nature of a person’s work or occupation is
often the reason for, or a result of, discrimination against the
person. Persons who perform the least desirable jobs in a society
are often victims of double discrimination, suffering first from
the nature of the work they must perform and suffering again by
the denial of their rights because they perform work that is
unacceptable. In most cases, a person’s descent determines
or is intimately connected with the type of work they are
afforded in the society. Victims of discrimination based on
descent are singled out, not because of a difference in physical
appearance or race, but rather by their membership in an
endogamous social group that has been isolated socially and
occupationally from other groups in the society.
I. Communities where
discrimination based on work and descent is experienced
8. Instances of discrimination based on work and descent have
been identified in many different social and cultural contexts.
The manifestations of such discrimination commonly include
prohibitions on intermarriage between socially or occupationally
defined groups; physical segregation of communities; restrictions
upon access to resources including land, water and other means of
production; social prohibitions regarding physical contact such
as sharing food or utensils; restrictions on access to education
or segregation in educational facilities; restrictions on access
to religious buildings and restrictions on participation in
religious ceremonies. The most widespread discrimination on the
basis of work and descent occurs in societies in which at least a
portion of the population is influenced by the tradition of
caste, including the Asian countries of Bangladesh, India, Nepal,
Pakistan and Sri Lanka.
A. India
"We must say that the National Human Rights
Commission as well as the UN General Assembly should
recognize that caste, as an institution itself, is a source
of gross violation of human rights. Therefore it must be
treated on a par with the existence and operation of racism
and apartheid. The caste system and the equally obnoxious
practice of untouchability must be taken seriously by the
Indian and international communities and administrative
bodies". – Interim Observations and Recommendations
of the Jury of the National Public Hearing on Dalit Human
Rights Violations, Chennai, April 2000.
9. In 1937, Dr. B.R. Ambedkar, a learned and respected Indian
leader and advocate of the rights of untouchables – or
Dalits, as he called them – and himself an untouchable,
announced that he had made a momentous decision to renounce the
religion of his birth, Hinduism, because he traced a great social
injustice in contemporary Indian society, namely the caste
system, to Hindu scriptures. Mahatma Gandhi, the spiritual leader
of India, who was moved by the plight of the untouchables, was
himself not prepared to blame Hinduism for the appalling
discrimination against millions of Indians by other Indians. In a
response to Dr. Ambedkar, the Mahatma said:
"Caste has nothing to do with religion. It is a
custom whose origin I do not know and do not need to know for
the satisfaction of my spiritual hunger.… The law of Varna
teaches us that each one of us earns our bread by following
the ancestral calling. It defines not our rights but our
duties. It also follows that there is no calling too low and
none too high. All are good, lawful and absolutely equal in
status."
10. The Mandal Commission on the reservation of government
jobs for Scheduled Tribes and other Backward Classes in its 1980
report said of the caste system: "The social ranks and their
respective duties, ordained by God for humanity, were intended to
remain fixed and unmovable. Like the limbs of the body they
cannot properly exchange either their place or function".
11. The debate as to whether caste is or is not derived from
Hindu scriptures need not detain us because 85 per cent of
India’s 1 billion people remain Hindu. Only a few million
followed Dr. Ambedkar and became Buddhists. Lesser numbers became
converts to Christianity and Islam. India is a stratified or
compartmental society not based on class but on descent or
occupation. It has been so for many thousand years. Dr. Ambedkar,
as Minister of Law and Chairman of the Drafting Committee of the
Constituent Assembly, was responsible for the many provisions in
the Constitution intended to fulfil the promise in the preamble
to secure to all citizens justice and equality of status and
opportunity.
12. Besides untouchables, there are other underprivileged
segments of Indian society who are grouped as Scheduled Tribes
and Other Backward Classes and they number many millions.
Scheduled Tribes are distinguished by tribal characteristics such
as social, religious, linguistic and cultural distinctions. In
addition, they are concentrated in certain geographical areas.
While they are officially recognized as deserving of special
treatment, the policy towards them is to effect improvements of
their conditions while at the same time preserving their
distinctiveness and giving them a measure of autonomy. In the
case of Other Backward Classes there is the initial difficulty of
identifying the persons who fit the description.
13. They appear to include all religious minorities who are
economically poor and lacking in educational opportunities. The
Mandal Commission report found 3,743 sub-castes as being socially
and educationally backward, and that Other Backward Classes
constituted 52 per cent of the population. That was in addition
to the Scheduled Castes/Tribes, which constituted a separate
category of 22.5 per cent of the population. Dalits estimate that
they constitute 19 per cent of the population, or 160 million
people. The present study does not include Scheduled Tribes and
Other Backward Classes as the discrimination against them, where
it exists, cannot strictly be said to be based on work or
descent.
14. Those who suffer discrimination based on descent or work
have received different names. Official terms were
"untouchables", "depressed classes" or
"scheduled castes". For Gandhi, they were
"Harijans" or "people of God" rather than
"untouchables". Today they are known as Dalits, or
"oppressed people" or "broken people".
15. Hindu society recognizes a caste hierarchy of four classes
or varnas: Brahmins (priests and scholars); Kshathriyas
(rulers and soldiers); Vaishyas (merchants and farmers); and
Sudras (servant class). The Sudras, the lowest caste, are seen as
persons who exist to serve the higher castes or "twice
born". Servility is their badge and with it loss of dignity.
According to some researchers there were upper Sudras and lower
Sudras, depending on the work they performed. Artisans,
carpenters, barbers, washermen and the like belonged to the
former while those engaged in unclean work such as sweepers,
scavengers, cobblers, cremation workers, hide and leather
workers, agricultural labourers, toddy tappers belonged to the
latter. Those considered to be at the lower end of the Sudras are
not in fact Sudras but are untouchables who are outside the caste
system or "outcastes", or they constitute a distinct
fifth caste.
16. In the mind of the upper castes untouchables are polluted
by their work and polluting to others by contact which must
therefore be avoided at all costs. A corollary is pointed out by
the Mandal Commission: "The real triumph of the caste system
lies not in upholding the supremacy of the Brahmin, but in
conditioning the consciousness of the lower castes in accepting
their inferior status in the ritual hierarchy as part of the
natural order of things".
17. Untouchability conveys "a sense of impurity and
defilement. It implies certain socio-religious disabilities. It
includes customs, practices sanctioned by the rigid Indian caste
system whereby persons belonging to the Scheduled Castes were
debarred from entering Hindu temples, public places, streets,
public conveyances, eating places, educational institutions,
etc." There are other disadvantages – segregation in
colonies in the village, denial of land rights, low wages for
manual work, denial of access to services, e.g. by barbers and
washermen, to health care and education. Untouchables belong to
castes which have the lowest ritual standing and often the most
depressed economic condition.
18. In the course of time occupations may have changed and
many Dalits are now engaged in agriculture as landless labourers,
as this activity has been opened to all. But this is not so in
the case of other occupations to which access is not permitted by
caste traditions. It is not merely the indignities heaped on
Dalits that make them an oppressed people. Because of the social
ostracism and economic deprivation they suffer, they often fall
prey to the most serious forms of persecution in their society,
including killings, mutilation, rape, arson, destruction of
property and other forms of violence (sometimes regrettably by
State agents) when they assert their rights.
19. The Government of India has taken several steps to
prohibit the practice of untouchability. First, and most
importantly, the Government has recognized the existence of the
problem. Second, the Government has made determined efforts to
deal with it. The Constitution of India in its Bill of Rights
(Part III), besides guaranteeing to all citizens the basic
civil and political rights and fundamental freedoms has special
provisions that are directed at the practice of caste
discrimination:
(a) Article 15 prohibits subjection to a disadvantage based on
caste with respect to access to shops, public restaurants, etc.
or to the use of wells, roads and public places maintained out of
State funds;
(b) Article 16 prohibits discrimination on the ground of caste
or descent in respect of employment under the State;
(c) Article 17 abolishes untouchability and prohibits its
practice in any form;
(d) Article 23 prohibits forced labour and discrimination on
the ground of caste when imposing compulsory service for public
purposes;
(e) Article 29(2) prohibits denial of admission to any
educational institution on the ground of caste;
(f) There are also positive duties imposed on the State to
redress imbalances due to past injustices against untouchables.
Article 15(4) permits the State to make special provisions for
the advancement of any socially and educationally backward class
of citizens, including Scheduled Castes;
(g) Article 16(4) permits the State to reserve appointments
for members of backward class not adequately represented in the
State services.
20. Articles 15(4) and 16(4) recognize beneficial
discrimination or protective/compensatory/preferential
discrimination, or simply affirmative action. Indeed, in the
governance of the country the State is enjoined by a directive
principle of State policy (art. 46) to "promote with special
care the educational and economic interests of the weaker
sections of the people, and in particular of the Scheduled Castes
and the Scheduled Tribes, and to protect them from social
injustice and all forms of exploitation". But it is
important to note that in the implementation of these provisions
the efficiency of the administration is not to be sacrificed
(art. 355).
21. Other provisions in the Constitution addressing caste
discrimination are:
(a) Article 325 which prohibits disfranchisement on ground of
caste;
(b) Articles 330 and 333 which provide for reserving of seats
for members of the Scheduled Castes and Scheduled Tribes in Union
and state legislatures according to the Scheduled Caste
population in each constituency;
(c) Article 338 which mandates the appointment of a National
Commission for Scheduled Castes and Scheduled Tribes. The
Commission has been appointed and investigates and monitors all
matters relating to the safeguards provided for Scheduled Castes;
(d) Article 341 which makes possible the legal identification
of Scheduled Castes or untouchables by means of lists prepared
for each state and union territory. The list, when published by
the President, is final as to the castes or groups within castes
deemed to be Scheduled Castes. The current state and union lists,
when totalled, contain more than 1,000 castes but, given the fact
that the same castes appear in the different state lists, the
estimate given of 76 Scheduled Castes is probably correct.
22. To bolster the constitutional provisions, India has passed
several laws:
(a) The Protection of Civil Rights (Anti-Untouchability) Act,
1955, strengthened by an amendment in 1973, punishes offences
that amount to the observance of untouchability, such as
prohibiting entry to temples or insulting someone on the basis of
his caste;
(b) The Bonded Labour (Abolition) Act, 1976 aims at the
release of labourers (usually Dalits) who work in slave-like
conditions in order to pay off a debt due to a high caste
employer, by cancelling any outstanding debt and prohibiting the
creation of new bondage agreements;
(c) The Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. This important law was needed because of
the high incidence of recurrent acts of violence against helpless
Dalits throughout the country. Eighteen atrocities are listed,
including violence against women, dispossession of a Dalit of his
land, mischief by fire and destruction of property. Penal Code
offences carrying a punishment of 10 years’ imprisonment if
committed against a member of a Scheduled Caste are punishable by
imprisonment for life. The offences are cognizable and
non-bailable. There are special courts to provide speedy trials
and special prosecutors to conduct cases. In 1999 rules were
enacted under the Act to strengthen the investigation process and
make provision for payment of compensation to victims;
(d) The Employment of Manual Scavengers and Construction of
Dry Latrines (Prohibition) Act, 1993. A special law was
considered necessary to deal with the most distressing
discrimination based on work and descent. There are an estimated
800,000 people, mainly women, who are engaged in cleaning dry
latrines using the most primitive methods. The law itself
describes this as a "dehumanizing practice" and is
intended to make it obligatory to convert dry latrines into
water-seal latrines. For the implementation of the Act the
National Commission for Safai Karamcharis was appointed. In its
1997 report the Commission found that manual scavengers are
"totally cut off from the mainstream of progress and are
still subjected to the worst kind of oppression and
indignities". What is more pathetic is the fact that manual
scavenging is still largely a hereditary occupation. Safai
karamcharis are no doubt the most oppressed and disadvantaged
section of the population. There is unfortunately evidence that
manual scavengers are considered untouchable by other
untouchables;
(e) Land reform laws to redistribute land to the landless.
23. It is an impressive list of the actions that have been
taken by the Government of India. That improvements have taken
place cannot be doubted and credit should probably go to the
National Human Rights Commission, the National Commission for
Women, the Scheduled Castes and Scheduled Tribes Commission and
the National Commission for Safai Karamcharis. A
micro-level study in the States of Karnataka, Gujerat, Andra
Pradesh and Orissa has led a scholar to conclude that:
"Like other institutions, caste- and
untouchability-based discrimination in the Indian society has
undergone change. The practice of untouchability and
resultant discrimination has reduced in the public sphere,
like panchyat offices, schools, use of public roads, public
transport, health and medical services, services of shops
(for buying goods) and services rendered by the tailor,
barber, eating places and tea shops in large villages and
urban areas. But even here discrimination in various
subtle forms prevail".
24. If in urban areas it is more the hidden or invisible
discrimination that a Dalit would encounter, in rural areas where
three fourths of the Dalits live open discrimination in all its
forms is fairly widespread. The overall picture is depressing. In
school education there is a marked literacy gap between the
Scheduled Castes and the rest of the population. It is reported
that reserved quotas in the universities are not filled,
especially in the technical and professional courses. There is
reportedly poor representation of Scheduled Castes in teaching
posts and caste clustering. There has been inadequate
distribution of lands among the Scheduled Castes promised under
the Ceiling of Land Acts. The shame of bonded labour remains for
millions, including a large number of children. The hideous
occupation of manual scavenging continues except in a few states.
If reports are to be believed no real effort has been made to
improve the conditions of work for these wretched people who out
of sheer necessity find that it is their lot to clean dry
latrines.
25. The Reservation of quotas in government employment and
education has run into the vexed problem of having to determine
whether caste alone should be the test or whether caste should be
combined with economic need. Quota reservations in state
employment are being filled in lower category jobs such as
sweepers, peons and clerks. In the absence of quotas there is
hardly any representation in the defence forces, scientific
establishments and judiciary. The Scheduled Castes have not
benefited from the economic progress made in the country in the
50 years since independence because there has been no policy in
the allocation of resources. In the rapidly growing private
sector there does not seem to be any opportunities for
advancement for members of Scheduled Castes.
26. At the same time atrocities are being committed almost
daily against Dalits and they go unpunished. These have been
researched and documented, mainly by Dalit organizations, in
several publications in horrifying detail. The laws are there,
but there is a clear lack of will on the part of law enforcement
officers to take action owing to caste prejudice on their part or
deference shown to higher-caste perpetrators. The Supreme Court
in State of Kerala vs. Appu Balu said: "More than 75
per cent of the cases under the (SC/ST) Act are ending in
acquittal at all levels". What is frightening is that the
atrocities committed – murder, rape, mutilation, arson etc.
– are not only isolated acts but could even be acts of mass
savagery committed by militia groups employed by the higher
castes. The inability of the police and courts to deal with these
crimes has had a backlash effect on young Dalits who also
themselves have formed armed groups or Naxalites.
27. The present situation in India could not have been better
expressed than in the words of the National Scheduled Caste and
Scheduled Tribes Commission:
"The task ahead is clearly, therefore, to focus on
the basic needs and requirements of SCs/STs and give them the
social dignity and the economic capability to come at par
with other sections of the society and become part of the
mainstream which had been the charter visualized by the
Constitutional makers 50 years ago. Such a strategy would not
only control the feeling of alienation, frustration and
rising military and civil strife but would also make the
SCs/STs active partners in nation building".
B. Sri Lanka
28. In Sri Lanka there are two caste systems, one for the
Sinhalese and the other for the Tamils. Although they both have
their origin in India, the Sinhalese caste system is not linked
to the Hindu varna. It was an aspect of a feudal society
which divided people "according to Descent and Blood"
or according to their hereditary roles and functions. The caste
system was a secular hierarchy. The stratification took into
account as many caste and sub-caste groups as there were feudal
services and functions or temple services to perform in a
disputed hierarchical order. There were no non-untouchables in
the Indian sense. Social distance was practised but the notion of
pollution hardly existed. As an American scholar concluded,
"The absence of the Hindu concept had rendered the Sinhalese
caste system mild and humanitarian when judged by Indian
standards".
29. The exception is the caste of Rodiyas or Rodi (meaning
"filth") from very early times. Many legends surround
their origin, all agreeing that they were banished for a heinous
crime and condemned to a life of begging or, more accurately,
soliciting for alms. They were denied land and work and subjected
to many disadvantages and degrading treatment. They were a
despised lot; even in the middle of the nineteenth century they
suffered "untouchability with a vengeance". They were
always a small community of about 500 families living mainly in
the central highlands in their own colonies of huts devoid of
amenities.
30. During 150 years of British rule when caste distinctions
were not officially recognized, there was a high degree of
mobility from low caste groups to positions of social standing
through entry into professions, business and politics. Desertions
from traditional caste occupations were easily achieved through
education, and caste became a status concept.
31. In the case of the Rodi the process has been much slower.
Through the efforts of the Backward Communities Development
Board, Rodi children were able to attend village schools.
Government land was given to them for cultivation. While official
sympathy was shown to the Rodi the prejudices of villagers were
not easily overcome; however, there is no evidence of any
atrocities committed against the Rodi. Farming and casual labour
have provided some opportunities but they have not been
completely emancipated from the economic point of view: for many
Rodi the old life outside the social system has continued.
32. The caste system of the Tamils, who are mostly Hindus, is
also occupation based. Tamils have high and low caste groups
which show a stronger concept of pollution and social distance.
At the bottom of the caste hierarchy are three castes of
untouchables who suffer social disadvantage more than others.
While Pallas and Nalavas (descendants of former slaves) can work
on upper caste land for wages or rent garden land from them,
Paraiyars engage mainly in so-called unclean work.
33. While the numerically powerful Vellala or farmer caste is
not inclined to loosen its dominant position in society over all
other castes, upward mobility could not be prevented after
American missionary schools were established in the nineteenth
century and education was opened to all without caste
distinction. Descent is still important in Tamil society and
prejudice is more openly shown. It is manifested publicly in
acrimonious disputes over temple entry. Only a small number of
temples are open to non-Vellala worshippers.
34. Recognizing that social disadvantages were imposed on
people based on the accident of birth or the work they perform,
the Prevention of Social Disabilities Act, 1957 was passed in
1957. The Act made it an offence for any person to discriminate
against another on the ground of his caste in the matter of
access to shops, public eating houses and hostels, public wells,
hairdressing salons, laundries, cemeteries, places of worship, or
for purposes of education and employment. In 1971 the Act was
amended to strengthen its priorities and to impose heavier
punishment. Initially there were some prosecutions in the North
but there was a tendency for the police not to take action
against violations. In a celebrated temple-entry case, the Act
was challenged as interfering with customs and ancient usages
that prohibited defilement of a Hindu temple by the entry of law
caste persons. This argument was rejected by the Supreme Court
and Privy Council.
35. The 1978 Constitution prohibits discrimination on the
ground of caste (art. 12(2)) and prohibits subjecting a person by
reason of his caste to any disadvantage with regard to access to
shops, public restaurants, etc. and places of public worship of
his own religion. There are no affirmative action provisions as
in India. Discrimination based on descent and work may not have
disappeared, but there are no signs that it is a problem.
36. A recent allegation of discrimination based on descent is
that made by Tamils of Indian origin employed mainly as tea
estate workers in the hill country. With regard to wages,
housing, sanitation, health and educational facilities, they were
an oppressed group. Improvements have slowly been made as a
result of government policies and powerful trade union action.
Integration with the rest of society is more difficult owing to
prejudice, but this is breaking down. There are signs of upward
mobility through education and non-discriminatory laws. Caste
distinctions exist among themselves and complaints have been made
that workers (mostly Dalits) are kept out of trade union offices
by high caste supervisors. The citizenship laws enacted after
independence rendered Indian Tamils, who numbered about 1
million, stateless, and they were denied voting rights.
Subsequent laws based on agreements between the Governments of
India and Sri Lanka have enabled them to acquire citizenship by
registration without any distinction being made between them and
others who are citizens by descent.
C. Nepal
37. Nepal has a predominantly Hindu population and a caste
system similar to that of India. About 21 per cent of the
population of 22 million constitute the service castes
(untouchables/Dalits) who are engaged in traditional occupations
with low status value. They range from artisans and singers to
castes doing unclean work like scavenging and removing dead
animals. What unites them is that they are subject to hurtful
discrimination - segregation, exclusion from public institutions
such as hostels, restaurants and milk cooperatives, or denied
free access to water, schools and temples, on the one hand, and
deprived of rights, facilities and opportunities given to others
to improve their conditions, on the other.
38. Untouchability was declared illegal in 1963 but the
practice was not made punishable until the onset of multi-party
democracy in 1990. The Constitution of 1990 guarantees the
fundamental rights of the people and makes any discrimination
against untouchables punishable by law. The National Code that
prohibited Dalits from entering temples and religious sites was
declared invalid by the Supreme Court in 1993. The Government is
committed to implementing policies aimed at the advancement of
Dalits. Thus, the "Independent Downtrodden and Oppressed
Community Council" was formed in 1998 with the objective of
coordinating policies and supervising programmes to benefit
Dalits. The Ninth Five-Year Plan adopted several specific
policies and programmes for the socio-economic development of the
Dalits, including in education, health, sanitation, training and
capability enhancement, and employment.
39. While these winds of change are appreciated, Dalits
complain that untouchability has not been eliminated, that there
is unequal distribution of resources, that many of them lack
agricultural land and that they remain economically and socially
depressed. The Government has acknowledged that "for an
overwhelming majority of people the caste system continues to be
an extremely salient feature of personal identity and social
relationships and, to some extent, determines access to social
opportunities". At the Asian Regional Preparatory Meeting
for the World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerances, held in Teheran in February
2000, the Government, whilst again admitting the problem of caste
discrimination, declared that the issue should be addressed at
the World Conference.
D. Japan
40. Japanese feudal society, which started 400 years ago and
lasted till 1867, left a class structure that placed "humble
people" at the bottom. They consisted of eta (extreme
filth) and hinin (non-human). The eta were assigned
such duties as disposing of dead cattle, leather production,
being security guards and sweeping while hinin made their
living as security guards, executioners and performers. The Buraku,
as they are now known, were subjected to intense prejudice and
discrimination, forbidden to marry or have physical contact with
common people as such contact was seen as "polluting"
the higher classes. They were an outcast population confined to
living in hamlets, now officially classified as Dowa
districts. The people of a Dowa district consist of the
original eta and hinin people and others who have
moved there. The official figures are 4,442 Dowa districts with a
total population of 1.2 million Burakumin, but the
unofficial figures are 6,000 and 3 million, respectively. The
discrimination is not only against those who work in traditional
occupations.
41. Beginning with the Emancipation Edict, 1871, many laws
have been enacted addressing the Buraku issue. Article 14
of the Constitution of 1946 states: "All people are equal
under the law and there shall be no discrimination in political,
economic or social relations because of race, creed, sex, social
status or family origin". But a government report in 1965
conceded that the Burakumin are "placed in such an
inferior position economically, socially and culturally that
their fundamental human rights are grossly violated even in
present-day society and that, in particular, their civil rights
and liberties which are assured to all people as a principle of
modern society are not guaranteed in reality". The
State’s responsibility to solve the Buraku problem
was accepted and special laws were passed in 1969, 1982 and 1987.
The Law for the Measures for Promotion of Human Rights
Protection, 1996, established a committee to analyse the extent
of Buraku discrimination and make recommendations for
human rights education and relief measures for victims. The Law
on the Promotion of Human Rights Education and Human Rights
Awareness - Raising, 2000 was the result of a national campaign
for the enactment of a fundamental law for Buraku
liberation.
42. It is admitted that the living standard of Buraku
people has improved, but discrimination in marriage and
employment continues. Particularly hurtful is the use of
derogatory terms in speech and writing. Also a matter of concern
in the printing of lists of Buraku households with the
names of the occupants, drawn up after private investigation and
made available to big companies to prevent the employment of Burakumin.
Government has enacted laws against such activities but the
practice continues.
E. Pakistan
43. Swat is an area of northern Pakistan which had a system of
stratification of unequal social groups (qoum) that can be
compared to the Hindu caste system, except that the people are
Sunni Muslims. The concept of ritual pollution is absent, its
place taken by notions of privilege and shame. The population of
the area is about 500,000 and the people are dependent on
subsistence agriculture. The groups are such as are to be found
in an agricultural community, and at the bottom are despised
people - sweepers, washermen, barbers and those who work with the
guts of animals. There is pollution by occupation but caste
status by birth does not prevent change of occupation. In ritual
activities there is equality but in everyday situations a
distinction exists.
44. In Sindh Province there are about 1.8 million persons
living in bondage as agricultural workers, the majority of whom
are Dalits originally from India. A large number of Dalit
families work in the brick kiln industry, also under conditions
of total bondage. Bonded families are virtual prisoners and not
permitted to leave until the debt is paid. In 1992 the Bonded
Labour (Abolition) Act was passed but observers note that even
when the national police take action state prosecutors fail to
file charges.
II. Violations
against women and children
45. In addition to suffering discrimination on the basis of
work and descent, Dalit women and girls also suffer gender
discrimination. Women in Dalit communities in Asia are poorly
educated and subjected to gruelling labour and many forms of
violence, including trafficking and prostitution. Dalit women are
consistently subjected to physical abuse and sexual exploitation
by higher caste landlords. Women are raped, mutilated and
murdered during caste violence. Dalit women do not regularly
report incidents of sexual assault because of entrenched biases
at every stage of the process.
46. Most girls and women in India’s and Nepal’s
urban brothels are from lower caste, tribal or minority
communities. The practice of devadasi involves the marriage or
dedication of a pre-pubescent low caste girl to a deity or
temple. Once dedicated, the girls are unable to marry; their role
is to serve as prostitutes to the higher caste men in the
village. Some states in India have passed laws prohibiting the
practice of dedication but they are reportedly not well enforced.
47. India has tried to remedy discrimination against women by
adopting a constitutional amendment in 1993 that provided for one
third of all panchyat or village council, seats and village chief
positions to be reserved for women and also reserved a percentage
of those for women from the lowest rungs of the caste system. In
Nepal the Constitution requires that 5 per cent of candidates put
up by national parties be women, and in local government 5 per
cent of the seats are reserved for women. It would appear,
however, that Dalit women are not represented at the national or
local level.
-
- Concluding remarks
48. The people described in this paper are estimated to number
250 million. It is a staggering number by any account. They have
inherited a life of burdens and few rights, a life of continuous
discrimination, a life without dignity. What wrongs have they
committed? The world may have changed around them but not for
them. They are ruled by traditions which are hundreds, and
sometimes even thousands of years old, traditions that cannot be
justified today. It is sometimes said that they are not a race as
understood in the international instruments. But they are in fact
a race of broken people with commonalities that bring them
together. They speak in many tongues and with one voice to ask
for social justice and good governance that will end the miseries
in their daily lives. They are a people subject to violations of
their human rights. It is the responsibility of the respective
States to endeavour, not merely the passing of remedial laws, but
by positive State action, to ensure that these violations do not
go unpunished. The strict enforcement of the law can assist the
other ongoing educational processes in society to bring about
attitudinal changes in the direction of tolerance, compassion and
justice.
49. The focus of this paper has been countries in Asia. At the
time the resolution was discussed in the Sub-Commission it was
mentioned the problem was not limited to Asia alone and that it
existed in some parts of Africa and perhaps in South America. I
have not been able to include in this paper the situation in
other areas because of constraints of time and lack of access to
relevant material.
50. This paper, which is introductory in nature will hopefully
demonstrate that there is a serious problem of human rights
violations arising from work and descent. The many complaints of
discrimination voiced at the United Nations General Assembly, the
Human Rights Committee, CERD and the Sub-Commission itself merit
further study, with the assistance of the Governments of the
countries concerned.
Posted on 2001-08-13
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