A Joint Civil Society* Contribution to the Committee on the Elimination of Racial Discrimination (CERD) for the adoption of the List of Issues Prior to Reporting on India has regretted that despite the abolition of untouchability enshrined in the Indian Constitution, and a constitutional formal prohibition of discrimination on the ground base of race or caste, under the Constitution, Dalits and other communities affected by discrimination based on descent, including Adivasis, still face de facto discrimination.
Pointing out that while India is a signatory to the anti-race resolution, it refuses to recognise caste at par with race, the civil society, in its report, submitted last month, has offered a large number of questions which CERD should be asking the Union government on how Dalit, Adivasis and other oppressed sections are being discriminated against based on specific Articles of the UN Charter.
Excerpts:
Article 1 - Definition of Racial Discrimination
Despite the consistent position held by the Committee, by UN Special Procedures and by the OHCHR, India has regularly contended that discrimination based on caste cannot be considered racial discrimination, most recently, in July 2020. As a consequence, India often fails to submit 3 information to relevant monitoring bodies on the situation of Dalits.The lack of disaggregated data on the basis of caste, tribe and language hinders the extent to which the Government can design effective policies to ensure the reach of all the human rights contained in its Constitution. This obscures the extent to which the Committee can satisfy itself of the extent to which racial discrimination remains a structural ground for access to rights within the remit of Art. 2(1), especially for Dalits and Adivasis (besides religious minorities), under groups within the direct purview of the Committee's review.
During its latest review of the country in 2007, the Committee had regretted "the lack of information in the State party's** report on concrete measures taken to implement existing anti-discrimination and affirmative action legislation, as well as on the de facto enjoyment by members of scheduled castes and scheduled and other tribes of the rights guaranteed by the Convention" and invited India "to include in its next periodic report detailed information on measures taken to implement anti-discrimination and affirmative action legislation, disaggregated by caste, tribe, gender, State/district and rural/urban population.
The Committee should seek assurance that the revocation of article 370 of the Constitution in September 2020, that effectively removes the special status of Jammu and Kashmir and the privileges enjoyed by its inhabitants in terms of access to property and to employment, is not part of a wider trend of the elimination of special measures as envisaged in art. 1(4) and 2(2).
The Committee should also be concerned that the Citizenship Amendment Act, passed by the Parliament of India in 2019, may retrospectively and disproportionately impact minorities (including non-Assamese speakers in the state of Assam) and Adivasis, with the National Register of Citizens creating a mechanism that could result in the arbitrary deprivation of nationality and its accompanying rights on the basis of processes that have yet to be determined and that may violate the provisions of the Convention.
Article 2 - obligation to implement a policy to eliminate racial discrimination
Untouchability was abolished under article 17 of the Indian Constitution and under the Protection of Civil Rights Act (1955). Forced labour is prohibited under Article 23 of the Indian Constitution. The Bonded Labour System (Abolition) Act 1976 and India Penal Code 1860 abolish forced labour and human trafficking. However, Dalits still face de facto untouchability, and contemporary forms of slavery. Public attitudes in Rajasthan, UP and Delhi show the high proportion of people who still practice untouchability.The practices also remain widespread, particularly in brick kilns, manual scavenging, and agriculture, given mainly to lack of adequate labor regulations and effective minimum wages for low skilled jobs, The Devadasi system (temple prostitutes) is just one example of slavery that has been identified by UNHRC in 2014.
Regarding Temporary Special Measures, new legislation was introduced, such as the 2019 Economically Weaker Sections Reservation (EWS), providing 10% quota EWS among General Category candidates in government jobs and educational institutions, through the 103rd Constitution Amendment.
An Anti-Discrimination and Equality Bill (Bill No. 289 of 2016) aiming at filling the constitutional gaps to prohibit a wide scope of forms discrimination has been introduced and is currently pending.
The Committee should seek clarification of the extent to which the State party's failure to implement the 2006 Forest Rights Act, designed to give effect to the Constitutional rights of Adivasis by addressing the "historic injustice" that was meted out to the forest dwellers by recognising forest land, resources, and resource management and conservation rights of the forest dwelling communities violates the rights of forest dwelling communities under the Convention.
Article 2.2 - Obligation to carry out temporary special measures
Constitutional provisions guarantee temporary special measures ("reservations") for Scheduled Castes/Dalits ("SC"). However, they are limited to the public sector and the reservation policy has always been met with obstacles in its implementation. According to official source, out of 28,345 vacant posts for SCs in Union ministries 14,366 were unfilled as of 1st January 2020.The increasing number of public sectors being converted into private sectors as a result of outsourcing practices will ensure lesser job opportunities for Dalits at the entry-level. Scrapping of reservation policy in the promotion in public sector and introducing the lateral entry scheme will take away the opportunity from Dalits at reaching decision making positions.
Even if Dalits, and especially Dalit women, reach decision making positions through constitutional guarantees, they face intersecting caste/gender-based discrimination at all levels. Ms. Saravanakumar Rajeswari (37), president of the Therkuthittai reserved village panchayat of Bhuvanagiri Union in Cuddalore district, Tamil Nadu, India was humiliated and forced to sit on the floor at a meeting in the panchayat office (village Council).
Article 3 - Obligation to condemn racial segregation, apartheid and to eradicate relevant practices
Access to food, land, health, and quality education are some of the necessities which Dalits in India are kept away from. Almost 60% Dalit households did not own any farmland in 2013 - the latest year for which figures are available - according to the India Land and Livestock Holding Survey. 70% of Dalit farmers are labourers on farms owned by others, according to Census 2011. The dropout rate 10 of Dalit students to staggering 51% at elementary level. The life expectancy rate of Dalit women is 39.5 years against dominant caste women life expectancy rate of 54.1.Article 4 - Obligation to condemn racist propaganda
An IDSN report of 2021 demonstrates the magnitude of caste hate speech. In 2019, when the SMP TikTok became popular in India, videos by dominant caste Tamil youths to annihilate Dalits became very common, with phrases like: "Our time will come. When it arrives, we will kill you," or "Fight us if you are a real man, you Dalit dogs.When the police investigated and arrested the accused of gang-raping and burning the body of 19-year old Dalit girl., upper caste-based organizations rallied in support of the accused and threatened and harassed not just the victim's family but the whole Dalit community.
Article 5 - Equal Enjoyment of Civil, Political , Economic, Social and Cultural Rights
There have been circa 10 cases of rape against Dalit women every day in the year 2019. The corresponding experience of Adivasi women shows that the problem is deeply entrenched. The overall conviction rate at Special Courts for Scheduled Castes and Scheduled Tribues POA Act for the period 2014-19 is recorded at 29.2%, acquittal rate at 68.3% and pendency rate at 88.5% whereas in rape cases against Dalit women is abysmally low at 32.7%. In Hathras, the brutal rape and death of a Dalit woman was systematically silenced by state authorities with the body of the victim cremated before a case was initiated, thereby destroying crucial evidence in a case of caste-based violence.Inter-caste marriage violence goes largely unpunished. From 2014 to 2019, at least 500 incidents of honour killings have been recorded, most of the victims being women, the majority of these cases involve an upper caste woman married to a Dalit man. Despite right for two persons from different castes to register a marriage, under the Special Marriage Act 1954 no law exists till date which provides protection to the individuals marrying inter-caste.
In March 2018, the Supreme Court gave preventive measures to combat honour crimes in India. The guidelines are to be followed till a proper law is legislated.
Segregation also takes place online. A Tamil Brahmin (Tambram) group on Facebook, requires validation of prospective members' caste authenticity, consisting of an exclusive space to interact and communicate with members from fellow caste groups.
Established social hierarchies and endemic discrimination has resulted in a further marginalization and exploitation in the context of the COVID-19, which has left these communities in a vulnerable situation. More than 60% of Dalit communities were unable to avail social emergency services promised/provided by the State party.
In 2019, 3486 cases of rape against Dalit women and girls; and 1110 cases of rape against Tribal women and girls were registered in 2019. This is an exponential rise in cases (around 158%) as compared to 2007 (1349 cases registered), when the Committee expressed concern about the number of incidents of sexual violence against Dalit women and girls.
Article 6 - Obligation to ensure the right to remedies before domestic tribunals or other State institutions
Access to justice remains elusive to Dalit communities in India. A study of 2020 analysed 40 cases of sexual violence against Dalit women through the justice system. Only 10% of cases examined reached convictions, while 90% of the acquittals originated from a dominant caste member. The police often failed to record or investigate crimes when initially reported and were sometimes abusive or put pressure on survivors to drop the case.Survivors were not given adequate advice about their legal rights, or not receive compensation. Survivors, family members, and witnesses also faced threats, coercion, and bribery to stop prosecutions. In almost 60% of cases, the survivor or her family was pressured into withdrawing from pursuing a legal case and had to accept an extrajudicial 'compromise'.
At the end of 2019, 7 of 10 prisoners are undertrials in India, where a majority from 21 marginalised castes - nearly two-thirds (64%) from the scheduled castes (21.7%), scheduled tribes (12.3%), and other backward classes (30%). Despite provisions of the Prevention of Atrocities Act, violence continues to surge annually against Dalits & Adivasis. The intersectional dimension of discrimination (CERD General Recommendation 25) is particularly alarming in the context of widespread rape and brutal assault of Dalit & Adivasi women.
Cases of atrocities against Dalits and Adivasis recorded have increased by 281.75% and 575.33%, respectively between 2009 and 2018, while the average conviction rate for cases of atrocities against Dalits and Adivasis remained at 25.2% and 22.8% respectively. Due to the legislative loopholes, the Prohibition of Employment as Manual Scavengers & their Rehabilitation Act 2013, was passed, which reinforced the ban on manual scavenging. Yet the official data shows that one manual scavenger dies every five days .
Article 7 - obligation to implement education, cultural, informational, and teaching measures to combat racial discrimination.
While the 2020 National Education Plan discusses "Equitable and Inclusive Education", there is no specific strategy provided for the implementation and upliftment of education for Dalits, Adivasis and other marginalised communities in India. In addition, prejudice and stigmatization based on caste must be stamped out with proper education and understanding of casteism and the resultant discrimination. Without addressing the issue of casteism through dialogue and proper information, Indian society is prone to continuing this cycle of social hierarchy and violence.For example, according to an officer trainee of Indian Administrative Services 2018, batch in some schools, the students were made to wear colour-coded wristbands, in shades of red, yellow, green, and saffron indicating whether the student belongs to lower class or upper class. In addition to this, forehead "tilaka (a mark) also served as caste makers.
Social media and the internet are used at a very large scale to disseminate misinformation and propaganda which includes casteist propaganda, while online caste-based violence and online harassment and hate continues to go largely unchecked. The Committee should also be gravely concerned by attempts to rewrite India's history by erasing certain communities from its educational materials.
Source: Counterview
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