Caste, the Treaty Bodies, and the International Future

In one line

Article 1 of the Racial Discrimination Convention defines racial discrimination to include a distinction based on descent, and the only unresolved disagreement between India and a human rights treaty body is whether descent covers caste.

The text

Article 1(1): racial discrimination means 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.

Article 1(2): the Convention does not apply to distinctions between citizens and non-citizens.

Article 1(4): special measures for the sole purpose of securing the 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 for different racial groups and are not continued after the objectives have been achieved.

Article 1(4) is the treaty's reservation clause and it corresponds to article 15(4) and article 16(4) of the Constitution, with one difference worth naming: article 1(4) has a temporal limit built into it, which the Indian clauses do not.

Article 14: a State Party may at any time declare that it recognises the competence of the Committee to receive and consider communications from individuals or groups of individuals claiming to be victims; no communication shall be received concerning a State Party which has not made such a declaration.

Article 22: disputes on interpretation or application, not settled by negotiation or by the procedures provided, shall at the request of any party be referred to the International Court of Justice, unless the disputants agree to another mode of settlement.

The disagreement

India's position, maintained consistently since ratification in 1968 and stated at length before the Committee and at the World Conference against Racism in 2001:

Descent in article 1 means descent by race, and the word appears in a list every other member of which is racial or ethnic. Caste is neither race nor ethnic origin; it is a social stratification within a single people.

Caste discrimination is therefore outside the Convention, and is dealt with by Indian constitutional and statutory law: article 15, article 17, article 46, articles 330 to 342, article 338, the atrocities legislation of 1989 and the untouchability offences legislation.

India's argument is not that the discrimination does not exist. It is that it is not racial discrimination and that the treaty is therefore not the instrument that governs it.

The Committee's position, expressed in its general recommendation on descent-based discrimination in 2002: