The Racial Discrimination Convention, and the Disagreement About Caste

In one line

Article 1 of the Racial Discrimination Convention defines racial discrimination as a distinction based on race, colour, descent, or national or ethnic origin, and the disagreement is whether descent covers caste, India saying it does not and the Committee saying it does.

The Convention

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.

Two features of that definition matter here.

Descent is one of five listed grounds, and it is the word in issue.

And purpose or effect. A measure need not be intended to discriminate; it is enough that it has that effect, which is the doctrine of indirect discrimination written into the definition.

Article 1(4) provides that special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals shall not be deemed racial discrimination, provided they do not lead to the maintenance of separate rights and are not continued after the objectives are achieved. This is the international counterpart of articles 15(4) and 16(4), and it is the answer to any suggestion that Indian reservations offend the Convention.

Article 2 contains the undertaking to pursue a policy of eliminating racial discrimination. Article 4 requires the criminalisation of the dissemination of ideas based on racial superiority or hatred, subject to a due regard clause. Article 5 lists the rights to be guaranteed without distinction. Article 6 requires effective protection and remedies. Article 7 requires measures in teaching, education, culture and information.

Articles 8 to 16 establish the Committee on the Elimination of Racial Discrimination, the reporting obligation in article 9, the inter-State procedure in articles 11 to 13, and the optional individual complaint procedure in article 14, which requires a declaration and which India has not made.

India's position

Stated as an argument rather than as a refusal, which is how it should be given.

Caste is not race. The Scheduled Castes and Scheduled Tribes are not racial or ethnic groups, and the distinctions the Convention addresses are those of race, colour and national or ethnic origin.

Descent in article 1 means racial descent, taking its colour from the surrounding words in the list. The travaux, India argues, show that the term was introduced in the context of national origin rather than to cover social stratification within a community.

Caste discrimination is addressed comprehensively in Indian law, by article 15, article 17, article 46, the Protection of Civil Rights Act 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, so the substance is not in dispute, only the classification.