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20 August 2000
Written statement submitted to the
Asia-Pacific Regional Seminar of Experts:
Bangkok, Thailand 5-7 Septemnber 2000,
in preparation for the World Conference Against
Racism, Racial Discrimination, Xenophobia and Related Intolerance
by the Asian Legal Resource Centre,
a non-governmental organisation in general
consultative status
Caste-based Discrimination in South Asia
1. Based on the Indian caste system, various caste systems
spread throughout South Asia and even outside of South Asia. The
essence of caste discrimination is that it limits employment to
one’s ancestral calling, it prohibits inter-marriage, and
thus, it is a permanent form of social stratification. Caste is a
total form of discrimination limiting education and nullifying
social mobility. Caste is also a political ideology. It is a
means of social control by which the largest sections of society
are denied their basic rights of free speech, assembly and
participation. It is an ideology that not only denies equality
but considers inequality as an ideal to be pursued. It is, in
essence, a violently suppressive ideology. As long as the
influence of caste remains, humane treatment of all people is
impossible.
2. Although some constitutional and legal provisions were
enacted during the 20th century to negate the influence of caste
in several countries, the impact of such legal measures has not
been able to make a significant change to the caste structure and
influence in these societies. In fact, some of the laws, such as
laws against atrocities against Dalits, have not been
implemented. The claim that these legal provisions are evidence
of the eradication of caste is untrue as extreme forms of
discrimination are perpetrated on hundreds of millions of people
every day.
3. We welcome the resolution "Elimination of Racial
Discrimination" at the 52nd session of the Sub-commission on
the Promotion and Protection of Human Rights held from 31 July to
18 August 2000, in Geneva, Switzerland, declaring that
discrimination based on work and descent is prohibited by
international human rights law. Caste discrimination is
discrimination based on work and descent and, therefore, should
be treated as prohibited by international human rights law.
4. The issue now facing the international community is how to
deal with a situation of prevailing practices of discrimination
on the basis of work and descent on the basis that such practices
violate international human rights law. A set of standards, norms
and guidelines must be developed to abolish the existing
practices of such discrimination. A mere declaration does not
suffice as even constitutional and legal provisions in themselves
have failed to eradicate these practices. The states concerned
must be held responsible under the international law for the
violation of international human rights law in these countries.
5. Caste is an entrenched form of discrimination still
practiced widely throughout South Asia. The human degradation
perpetuated by the caste system has few parallels. Discrimination
is extended to all aspects of life; its physical and
psychological effects on "untouchables" and
"lower" castes constitute gross human rights abuse.
Caste discrimination violates all human rights norms on which
United Nations instruments are founded, as enshrined in the
preamble to the Universal Declaration of Human Rights, that
"recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world".
6. Though in many respects caste discrimination is worse than
slavery and apartheid, the international community has not taken
any significant position against it. The World Conference Against
Racism, Racial Discrimination, Xenophobia and Related Intolerance
is obliged to address caste, just as previous international fora
have addressed apartheid and slavery. For many millions suffering
in South Asia, the Conference will be a failure if the caste
system is not adequately held to account.
7. The Asian Legal Resource Centre appreciates the comments on
caste made by the Special Rapporteur on Contemporary Forms of
Racism in his January 1999 report (E/CN.4/1999/15); the
recommendations on themes of the World Conference outlined in the
Bellagio Consultation document (A/CONF.189/PC.1/10); and the
recent written statement submitted by the World Council of
Churches (E/CN.4/2000/NGO/102) on the current situation of Indian
Dalits.
8. Inhuman treatment of a vast South Asian population,
including people in Sri Lanka, Nepal and Bangladesh, has been
justified on the basis of caste. But by far the largest number of
people suffering its extremes are in India. Presently, India's
Dalits and other so-called "untouchables" constitute
around 17% of the population. Along with other
"minority" groups, including tribal peoples, Sikhs and
Muslims, they constitute roughly 85% of Indians. To this day, the
level of violence against Dalits and other lower castes is
atrocious.
9. In 1936 the foremost Dalit leader, Dr. B.R. Ambedkar said,
"My quarrel with Hindus and Hinduism is not over the
imperfections of their social conduct. It is much more
fundamental. It is over their ideals." Under the caste
system, an ideal society is unequal. In every respect, caste
rejects the notion of human equality and justifies discrimination
on the basis of graded inequality. Principles of common good
exist only within each caste group. The question of balancing
interests between groups does not exist, for the simple reason
that each caste is a world unto itself. Caste prevents the
possibility of associated living among people; it is the most
extreme division of social and political power. Its enclosure is
complete, to the extent that direct contact between castes is
prohibited, in order to avoid "pollution". It means
total segregation, whether in temples, at wells, on roads, in
schools and in marriage. Thus, while caste discrimination bears
some similarity to that of slavery, it is in many respects more
dehumanizing. The very term "untouchable" means one
with whom no social contact of any sort should be held, under
threat of punishment. It degrades beyond all comparison.
10. The Constitution of India accepts the principles of
equality, fraternity and liberty; it outlawed all enclosed units
by implication. However between this legal position and reality
lies a vast gap. The world’s largest democracy has failed to
develop beyond a mere formal democracy. No amount of criticism
about the conflict between constitutional principles and practice
can be of any impact on ethical principles and practices based on
the opposite ideal. Ethically, there is unity of theory and
practice, as inequality is accepted both as ideal and is
practiced. Legal confusions have no bearing on the ethical
foundation of caste-based societies. Constitutional declarations
of equality or acceptance of international covenants founded on
the principle of equality may create legal obligations,
nonetheless they do not change the ethical foundations of a given
society.
11. Caste lies behind many social crises in South Asia. Caste
society does not recognize the right to dissent as a valid
ethical principle. The right to expression is based on
recognition of human equality. To deny the right to dissent is to
deny the right to freedom of expression, and further, to regard
expression of opinion as futile activity. Caste boundaries are
fixed; no change can be brought about by any expression of
opinion.
12. Caste society has no absolute prohibition of torture. The
caste system can be maintained only through indifference to
cruelty. Cruel treatment of lower castes, such as in preventing
them from drinking water out of the same wells as upper castes,
is normalized. Under the rules of pollution and purification,
those breaking with such unjust practices commit a wrong.
13. The lack of agreement on ethical principles against
cruelty has a direct bearing on such practices as extra-judicial
killings, disappearances, forced confessions and other human
rights abuses. In South Asia these are now regarded as legally
wrong, however morally they are not widely condemned. An
underlying culture of impunity remains fundamentally
unchallenged; there is little outrage.
14. The number of persons who to some degree have broken
intellectually from the grip of caste has increased to millions.
The consciousness of vast masses has begun to change. Modern
pressures, such as increased interaction through travel and
communications, make many practices of pollution and purification
hard to maintain; open and conscious defiance more difficult to
prevent. The conflict of inner rejection and outer compliance
gives rise to many forms of hypocrisy and cynicism. Thus,
willingness to accept equality as the ethical foundation of
society has grown among many. In response, upper castes try to
re-invent themselves in new forms, and develop many more subtle
ways to keep their system alive. Repression of those who reject
caste is much more intense and violent. There are even movements
working towards withdrawal of constitutional guarantees of
equality and the various kinds of affirmative action provided to
improve conditions for Dalits and lower castes.
15. However these days, when democratic jargon is widely used,
sometimes there is no way that discrimination can be openly
justified. That caste hierarchy is no longer easily legitimised
has in itself contributed to the emergence of a broadly
acceptable public discourse about caste status coded as cultural
difference. Because people cannot readily speak of castes as
unequal, they describe them as "different". In this
case, difference is another name for inequality. Thus, when for
the sake of international relations the proponents of caste enter
into dialogue accepting equality as the basis of discussion, they
engage in such discourse only artificially. Their real position
remains outside the discourse.
16. Claims to a "special religiosity" are also often
made internationally by the South Asian caste elite in defence of
their system. Yet what have passed as religious views in India
are often mundane theories and rules of social control that have
been deemed sacred by controlling agents. When caste
discrimination was developed, religious and judicial notions
followed to justify it. To make this purported special
religiosity "Indian", the views of Dalits and lower
caste Indians were excluded, and have been since.
17. Elitist claims that Dalit concerns are merely historical
matters of backwardness and society's functional bases are
equally fabrications that aim to perpetuate their subjugation of
lower castes. The Special Rapporteur recognised caste as falling
within the scope of Racial Discrimination and Related Intolerance
in his January 1999 report (para. 100) and cited articles from
the Indian Constitution and views of the Committee on the
Elimination of Racial Discrimination in reaching this conclusion.
The Bellagio Consultation likewise recognised caste as a form of
racial discrimination and intolerance. Thus caste is
categorically a concern for the World Conference.
18. Yet in terms of what the international community must do
to eradicate discrimination, caste presents a difficult problem.
The caste system is one in which doors to other castes are
closed. To open the doors cannot be a decision of just one caste.
It has to be a decision by consensus, because the breaking of
caste boundaries involves an exit as well an entrance. While one
caste may make a decision to exit from its boundaries, entering
into boundaries held by others requires their consent. When the
most socially and politically powerful castes want to remain
enclosed, lower castes’ decisions to break open can have
little effect. Emancipation lies in destroying caste enclosure
from all sides. The international community must help to achieve
this by examination and exposure of the ethical foundations
underpinning caste-based societies.
19. The Asian Legal Resource Centre therefore urges the World
Conference to:
i. Reaffirm Article 1 of the Universal Declaration of Human
Rights, that all persons are born free and equal in dignity and
rights, and deplore all principles and practices rejecting the
basic notion of universal human equality;
ii. Recognise all forms of caste discrimination as falling
with the scope of the Conference, and explicitly equate caste
with slavery and apartheid;
iii. Pursue the recommendations of the Bellagio Consultation,
particularly for the formulation of national plans of action
against racism, which in the South Asian context must include
elimination of caste; establishment of a United Nations
inter-agency task force on racism and a semi-autonomous body to
promote research and training on related issues; with assistance
from the High Commissioner for Human Rights, creation of
operational units within regional bodies to focus on combatting
racism, which pertains specifically to the South Asian
Association for Regional Cooperation (SAARC); and the
establishment of a United Nations voluntary trust fund to give a
platform to Dalits and lower castes;
iv. Examine in particular the issue of Dalit women and
children, who suffer the most extreme forms of caste
discrimination and have the fewest avenues available for social
advancement; and,
v. Establish specific indicators to monitor measures for the
advancement of not only civil and political rights but also
social, economic and cultural rights, targetting the elimination
of caste-based discrimination. The existence of mere legal
provisions should not be taken as a guarantee of protection for
victims of caste systems. All areas of administrative practice
and implementation need to be regularly reviewed.
20. The Asian Legal Resource Centre urges World Conference
organisers to make all facilities available to permit full
participation by non-governmental agencies in both the
forthcoming Conference and preparatory meetings.
21. The elimination of caste is a much-belated human rights
concern. After a few thousand years of practice, gigantic efforts
to break the system open have as yet failed. That discrimination
so gross as caste has survived to this day is not only an
indictment against the countries where the practice exists but
also against the international community itself. Fifty years of
United Nations' instruments are of no significance to the
millions continuing to suffer this most perverse form of
intolerance. In South Asia, little regard will be paid to the
outcome of this Conference if it does not effectively address
caste. The solution to caste discrimination does not lie in
tolerance among castes; it demands nothing less than the
elimination of caste itself. The World Conference must facilitate
effective international action towards that end.
22. We cite with approval Anti-Slavery (from their recent
submission to the ILO Committee of Experts) that the bonded
labour in Nepal primarily affect two groups: Dalits
("untouchables") and the Tharu indigenous community of
the Far-Western Region. It can also be said the question of
bonded labour in India is very much tied to the caste system.
23. According the NGO, International Humanist and Ethical
Union, Codified in ancient law, regulated by restrictions on
marriage, perpetuated by religious orthodoxy, members of
Hinduism's lower castes are excluded from society, denied access
to community resources, including even community wells for
drinking water. Traditionally excluded from sacred rites and all
social intercourse, and condemned to a life of disposing human
feces and removing animal carcasses, Dalits, or India's so-called
untouchables are now also victims of higher caste militias and
police atrocities. Despite legal safe guards, official Indian
figures show that caste crimes against 'untouchables' average
over 10000 a year; in 1989 alone the figure was14,269 cases.
Posted on 2001-07-13
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