Caste, Descent, and the Racial Discrimination Convention

Article 5's last item is the closest international provision to article 17 of the Constitution, and it is worth citing on untouchability.

Article 6: States shall assure effective protection and remedies through competent national tribunals against any acts of racial discrimination, as well as the right to seek just and adequate reparation or satisfaction.

Article 7: States undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, to combat prejudices leading to racial discrimination.

The two positions on descent

India's position, and it should be stated as an argument.

Caste is not race, and the Scheduled Castes and Scheduled Tribes are not racial or ethnic groups.

Descent takes its meaning from the surrounding words, race, colour and national or ethnic origin, and so means racial descent; the drafting history is said to show that it was introduced in the context of national origin.

Indian law addresses caste comprehensively already, through articles 15, 17 and 46, the Protection of Civil Rights Act, 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

And an internal social question should not be internationalised, which is the political rather than the legal element.

The Committee's position, in three arguments.

Descent is listed separately from race, colour and national or ethnic origin, and a term appearing in a list of five is presumed to add something, so reading it as a synonym deprives it of content.

Its general recommendation on descent-based discrimination states that the term includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status.

And the effect test supports it, since the question is whether a distinction based on inherited status has the effect of impairing equal enjoyment.

How to assess the disagreement

Three propositions, and giving them is what turns a recital into an analysis.

Both readings are arguable on the text. Reading a word by its neighbours and reading a listed term as adding something are both recognised methods, and the text does not settle it.

The substance is not in dispute. India prohibits caste discrimination constitutionally, criminalises it in two statutes and provides special measures. What is contested is the classification and the forum, not the wrong.

And the practical consequence is limited. India reports under the Convention and the Committee raises caste in its concluding observations regardless, so what India avoids is the label rather than the scrutiny.

India's declaration on article 4

Separately from the caste question, India declared on ratification that she undertakes to adopt measures under article 4 with due regard to the rights in article 5 of the Convention and in the Universal Declaration, particularly freedom of speech and expression and of peaceful assembly and association. Article 4 itself contains a due regard clause, so the declaration follows the article's own wording.

Worked example

Her Q1 and Q7(d), and any question on caste and international law.

Give article 1(1) precisely, and identify descent and the purpose or effect test, and the confinement to public life.

Give article 1(4) as the counterpart of articles 15(4) and 16(4).

Give articles 2 to 7 in one line each, and cite article 5's right of access to any place or service intended for use by the general public against untouchability.

Give both positions as arguments, four on one side and three on the other.

Close on the three propositions, ending on label rather than scrutiny.

What it does NOT mean

It does not mean India defends caste discrimination. She prohibits and criminalises it.

It does not mean the Committee's view binds India. It does not, and nothing resolves the disagreement.

And it does not mean the Convention reaches the household. Article 1 is confined to public life.

Quick revision

• Article 1(1): any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin having the purpose or effect of impairing equal enjoyment, in public life. Descent is the word in issue; public life is narrower than the Women's Convention's any other field.
• 1(2) citizens and non-citizens; 1(3) nationality laws; 1(4) special measures are not racial discrimination if not maintaining separate rights and not continued after the objectives are achieved, the counterpart of articles 15(4) and 16(4).
• Article 2 eliminate without delay, including prohibiting discrimination by any persons, group or organization, and 2(2) special and concrete measures. 3 segregation and apartheid. 4 propaganda, with due regard to the Declaration and to article 5. 5 the list of rights, including the right of access to any place or service intended for use by the general public. 6 effective protection and remedies and just and adequate reparation. 7 teaching, education, culture and information.
• India's four arguments: caste is not race; descent means racial descent from its neighbours; Indian law already covers caste; and it is an internal question.
• The Committee's three: descent is listed separately and must add something; its general recommendation covers caste and analogous systems of inherited status; and the effect test supports it.
• Three propositions: both readings are arguable; the substance is not in dispute; and India avoids the label, not the scrutiny.

Test yourself

1. What does article 1 provide, and why is descent contested? Article 1(1) defines racial discrimination 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. Three features matter: descent is one of five listed grounds and is the word in issue; the purpose or effect test means intention is not required, which writes indirect discrimination into the treaty; and the field is public life, which distinguishes this Convention from the Women's Convention, whose article 1 reaches any other field and so extends to the household.

Descent is contested because if it covers caste then caste discrimination falls within the Convention, India's periodic reports must address it as such, and the Committee's concluding observations engage it directly; if it means racial descent, caste discrimination is a matter for Indian law alone and lies outside the Convention's subject matter. Article 1(4) should be given alongside, because it provides that special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups shall not be deemed racial discrimination, provided they do not lead to the maintenance of separate rights and are not continued after the objectives for which they were taken have been achieved; it is the international counterpart of articles 15(4) and 16(4) and answers any suggestion that Indian reservation policy offends the Convention.

2. Set out both positions. India's position has four elements and should be stated as an argument rather than as a refusal. Caste is not race, and the Scheduled Castes and Scheduled Tribes are not racial or ethnic groups. Descent takes its meaning from the words surrounding it in the list, race, colour and national or ethnic origin, and therefore means racial descent, and India argues that the drafting history shows the term was introduced in the context of national origin. Indian law already addresses caste comprehensively, through articles 15, 17 and 46, the Protection of Civil Rights Act, 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. And an internal social question should not be internationalised, which is the political rather than the legal element of the position.

The Committee's position has three elements. Descent is listed separately from race, colour and national or ethnic origin, and a term appearing in a list of five is presumed to add something to the others, so reading it as a synonym for racial descent deprives it of content. The Committee's general recommendation on descent-based discrimination states that the term includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status which nullify or impair the equal enjoyment of human rights. And the effect test in article 1(1) supports the wider reading, since the question is whether a distinction based on inherited status has the effect of impairing equal enjoyment, which is what caste discrimination does by definition.

3. How should the disagreement be assessed, and what else does the Convention require? By three propositions. Both readings are arguable on the text: construing a word by reference to its neighbours and construing a listed term as adding something to the others are both recognised methods, so the text does not settle the question and an answer that declares one side simply wrong is overstating. The substance is not in dispute: India does not defend caste discrimination but prohibits it constitutionally, criminalises it in two statutes and provides special measures, so what is contested is the classification and the forum rather than the wrong. And the practical consequence is limited, because India reports under the Convention and the Committee raises caste in its concluding observations regardless of how the classification question is resolved, so what India avoids is the label rather than the scrutiny.

Beyond article 1, the Convention requires a good deal that is uncontroversial in India. Article 2 requires States to condemn racial discrimination and pursue its elimination by all appropriate means and without delay, including prohibiting it by any persons, group or organization, and article 2(2) requires special and concrete measures where circumstances so warrant. Article 3 requires States particularly to condemn racial segregation and apartheid and to prevent, prohibit and eradicate such practices. Article 4 requires measures against propaganda and organizations based on racial superiority, with due regard to the principles of the Universal Declaration and the rights in article 5, and India entered a declaration following that clause, undertaking article 4 with due regard to freedom of speech and expression and of peaceful assembly and association. Article 5 lists the rights to be guaranteed without distinction, and its final item, the right of access to any place or service intended for use by the general public, is the closest international provision to article 17 of the Constitution and is worth citing on untouchability. Article 6 requires effective protection and remedies through competent national tribunals together with the right to seek just and adequate reparation or satisfaction. And article 7 requires immediate and effective measures in teaching, education, culture and information to combat prejudice.