Ijgr Article p796 - 796

international journal on minority and group
rights 27 (2020) 796-825

brill.com/ijgr
The ‘Caste’ as ‘Discrimination Based on Work

and Descent’ in International Law: Convincing or
Compromising?
Bhimraj M 1
Chennai, India
bhim.chess1995@gmail.com
Abstract
The difficulty in categorising caste discrimination into standard categories of human

rights violations has forced Dalit activists into comparing caste discrimination with
racial discrimination – a highly condemned practice in international law. This strat-
egy materialised through the word ‘descent’ in Article 1 of the icerd. Currently, caste
discrimination has become important on the human rights agenda under the guise
of ‘discrimination based on work and descent’ (dwd), and by extension, ‘racial dis-
crimination’. The main theme of this article is to address the capability of the dwd
mechanism to comprehensively capture the intricacies of caste discrimination. Upon
analysis, it was found that dwd dilutes the religious aspect of the caste system. Hence,
this article advocates a caste-specific Convention, which focuses on both religious and
secular aspects of the caste system. This won’t happen soon; therefore, caste should be
maintained as a unique form of dwd in the meantime.
Keywords
caste-based discrimination – discrimination based on work and descent (dwd) –

racial discrimination – minority rights
1 This article is a part of my llm dissertation, ‘Caste-Based Discrimination and International

Human Rights Law’, submitted in May 2019, at South Asian University, New Delhi, India.
The author would like to immensely thank Dr. Sai Ramani Garimella, Assistant Professor,
South Asian University, Dr. Srinivas Burra, Assistant Professor, South Asian University and
Dr. Sakthivel Ponnusamy, Assistant Professor, The Tamil Nadu Dr. Ambedkar Law University,
for their intellectual guidance and moral support. The author bears the full responsibility for
the views expressed in the article.
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The ‘Caste’ as ‘Discrimination Based on Work and Descent’ 797
1 Introduction
The absence of the term ‘caste’ in human rights treaties and the difficulty of
categorising caste-based discrimination in standard categories of human
rights2 has forced the Dalit activists to utilise the existing mechanisms to in-
ternationalise the issue. They adopted the strategy of comparing ‘caste’ with
‘race’ and caste-based discrimination with racial discrimination, a highly con-
demned practice in international law. This strategy materialised through the
word ‘descent’ in Article 1 of the International Convention on the Elimination
of All Forms of Racial Discrimination (icerd). Since the observation of the
Committee on the Elimination of Racial Discrimination (cerd), particularly
its General Recommendation No. 29 which concluded that ‘descent’ in icerd
refers to ‘caste’, many organisations including UN Sub-Commission have fo-
cused on caste under the broad categories of ‘descent-based discrimination’ or
‘Discrimination Based on Work and Descent’ (dwd) albeit against opposition
from the government of India, which is keen to veer away from attempt of re-
conceptualisation of caste as racial discrimination.3
However, currently, caste-based discrimination has become an impor-
tant issue on the human rights agenda under the guise of descent-based
discrimination or dwd, and by extension ‘racial discrimination’. The UN
Secretary-General’s Guidance Note on Racial Discrimination and Protection
of Minorities, which recommended the UN system focus on “caste-based
discrimination and related practices”, is a significant step towards the inter-
nationalisation of the issue.4 Consequently, in 2016 the UN Special Rappor-
teur on Minority Issues (‘2016 Report’) released the “first comprehensive UN
2 hrw, ‘Broken People: Caste Violence against India’s “Untouchables”’, 1999, www.hrw.org/
reports/1999/india/India994-14.htm#P2380_509477,, visited 15 March 2019.
3 There is a dispute between India and cerd on the interpretation of ‘descent’, in Article 1 of
icerd. The former maintains that ‘descent’, in icerd refers only to ‘race’, not ‘caste’, thereby
denying the application of icerd to caste-based discrimination contrary to the position of
the latter. See generally, D. Keane, ‘Descent-Based Discrimination in International Law: A
Legal History’, 12 International Journal on Minority and Group Rights (2005) p. 93. Waughray
and Keane describe the result of the confrontation between India and cerd on the interpre-
tation of ‘descent’, as a “stalemate” although they expect optimism that such situation would
recede its importance due to “a wider international understanding of caste and descent”.
D. Keane and A. Waughray, Fifty Years of International Convention on Elimination of All Forms
of Racial Discrimination: A Living Instrument (Manchester University Press, Manchester,
2017) p. 149.
4 UN Secretary-General, ‘Guidance Note of the Secretary-General: On Racial Discrimination
and Protection of Minorities’, (2013).
international journal on minority and group rights 27 (2020) 796-825

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798 Bhimraj M
r eport on caste-based discrimination”.5 Although the UN human rights bodies,

both charter- and treaty-based, have addressed caste-based discrimination in
their findings,6 none of them dealt exclusively with the issue as the 2016 Re-
port did. The 2016 Report, without a doubt, can be regarded as a landmark
document, and is of utmost significance as it paved the way to address caste-
based discrimination within the minorities framework. Hence, caste-based
discrimination can now be addressed under the dwd and minorities frame-
work in international law. How far these human rights mechanisms can help
in eliminating caste-based discrimination is an important question to be anal-
ysed. The answer depends on the following question. How far can the existing
mechanisms, i.e., dwd or minorities framework, comprehensively capture the
intricacies of caste-based discrimination? The aim of this article is to find an
answer to the second question.
Accordingly, this article is divided into the following sections. Section 2 ex-
plains the failure of the Indian government to mitigate against the atrocities
against the Dalits, let alone create a casteless society with recent examples,
which still shows the insufficiency of domestic mechanisms and a valid reason
to seek the help of international law.
Section 3 deals with the internationalisation of caste-based discrimination.
It is further divided into three sub-sections. Section 3.1 deals with Ambedkar
and internationalisation of caste-based discrimination. Contrary to the argu-
ments made in the existing literature, it is argued that even before his letter
to DuBois in 1946, Ambedkar had the intentions of internationalising the is-
sue. Section 3.2 chronicles the efforts of the post-Ambedkarite Dalit activists
to internationalise the issue, and Section 3.3 focuses on the drama at the 2001
Durban Conference.
Section 4 analyses the category of dwd and the 2016 Report. It is further
divided into four sub-sections. Section 4.1 analyses the category of dwd. As
noted earlier, the 2016 Report has paved the way to addressing caste-based
discrimination within the minority framework. As Ambedkar’s major politi-
cal strategy was to emphasise the ‘minority status’ of Dalits, can the 2016 Re-
port be regarded as a revival of Ambedkar’s strategy in international law? This
question is addressed in Section 4.2. Section 4.3 critiques the category of dwd
5 unhrc, ‘Report of the Special Rapporteur on minority issues’, (2016), UN Doc A/hrc/31/56, 21.
6 For a comprehensive compilation on references to caste discrimination and descent-based
discrimination by the UN Bodies, see idsn, ‘Caste Discrimination and Human Rights’, (11th
ed. 2018), <https://idsn.org/un-2/compilation-of-un-references-to-caste-discrimination/>,
visited 24 April 2019.

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for diluting the religious aspect of the caste system. Section 4.4 deals with the
question of utilising the framework of indigenous peoples to address caste-
based discrimination. It is argued that this framework is not an appropriate
category to address caste-based discrimination because, among other reasons,
it preserves customs, which in themselves are a source of discrimination for
caste-affected groups.
Section 5 is the conclusion. It is suggested that as dwd dilutes the religious
aspect of the caste system, Dalit activists should advocate a Convention specif-
ic to caste discrimination, which focuses on both religious and secular aspects
of the caste system. As this will take a long time to achieve it is essential at
least to highlight the religious aspect within the available frameworks, thereby
maintaining caste as a unique form of dwd, among others.
2 Failure of the Government Machinery
The Indian Constitution guarantees equality, abolishes untouchability, prohib-

its caste discrimination and in addition to securing affirmative action for the
backward classes it also obligates states to promote the interests of scheduled
caste and scheduled tribes (SC/STs) with ‘special care’,7 and to provide them
with economic justice to prevent exploitation. Accordingly, specific legislation
such as the Protection of Civil Rights Act, 1955, (pcr) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’), Bonded
Labour (Abolition) Act, 1976, Prohibition of Employment as Manual Scaven-
gers and Their Rehabilitation Act, 2013 replacing that of 1993, were enacted
to curb discrimination and atrocities. But lack of political will, the prejudicial
attitude of the state officials against Dalits and self-interested Dalit politicians
turned those legislations into mere pieces of paper. The consistent increase in
the frequency of caste-based crimes, in spite of restrictive legislation, proves
nothing but the failure of the successive governments to create a liveable soci-
ety for Dalits. This indeed confirms Smita Narula’s allegation: “The Rule of Law
in India lives in the shadow of the rule of caste”.8
2.1 Recent Incidents

Three recent incidents appear to further expose the maliciousness of Indian
institutions against Dalits. First, an ips officer from Maharashtra allegedly said,
7 Constitution of India 1950, Art. 46.

8 S. Narula, ‘Equal by Law, Unequal by Caste: The “Untouchable” Condition in Critical Race
Perspective’, 26 Wisconsin International Law Journal (2008) pp. 255, 295.

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800 Bhimraj M
“I tie the hands and legs of Dalits and take out my anger about [the Atrocities
Act] on them”, and she also admits filing false cases against Dalits and Mus-
lims.9 If one views this against the background of the ncrb data10 that Dalits
and Muslims constitute a disproportionate number of pre-trial prisoners and
detenues in India, one can conclude that this is not an isolated incident, but a
sample of the hostile attitude of officials towards Dalits. Even the recent study
on the socio-economic profile of death row convicts showed that SC/STs and
Muslims constitute 44.5% of the total number of convicts.11
Secondly, the Supreme Court of India has diluted the SC/ST Act for dubious
reasons.12 It held that under the Act, First Information Report should not be
filed without a preliminary enquiry and no arrest shall be made without the
written permission of the appointing authority in case of public servants, and
the Senior Superintendent of police in case of non-public servants. It added
two new grounds for denial of the application of Section 18 of the SC/ST Act,
which precludes the application of anticipatory-bail, namely, cases of false im-
plication or cases motivated for extraneous reasons without defining them.13
By doing so, it revisited two earlier judgments which upheld the constitutional
validity of Section 18. Nitish rightly asks that if the Supreme Court found those
judgments were wrongly decided why instead of referring the case to an ex-
panded bench did it revisit them? And for the same reasons criticises the deci-
sion as per incuriam.14
The Court also made some sweeping observations which depict SC/STs,
the victims of the caste system, as perpetrators by generalising an individual
case. It overlooked a large number of pending trials and low conviction rate
in spite of increasing atrocities under the Act, the pressure exerted by the of-
fenders on the victims and the systematic hurdles faced by the SC/STs from
registration of cases to court trials which was acknowledged by the same
Court in one of its previous judgments.15 For example, 95% of the acquittal
9 ‘Beed: Storm over video purporting to show police officer saying she files false cases
against Dalits’, Scroll.in, 3 December 2018, <https://scroll.in/latest/904259/beed-video
-of-police-officer-saying-she-targets-dalits-muslims-with-false-cases-goes-viral>, visited
1 March 2019.
10 54.9% of pre-trial prisoners and 55.8% of the detenues were Dalits and Muslims. ncrb,
‘Prison Statistics 2015’, p. 96.
11 Death Penalty India Report (Vol. 1, nlu Delhi, 2016), p. 101.
12 Subhash Kashinath Mahajan v. State of Maharashtra, Criminal Appeal No. 416 of 2018.
13 The other ground is the absence of a prima facie case.
14 N. Nawsagaray, ‘Misuse of the Prevention of Atrocities Act: Scrutinising the Mahajan
Judgment, 2018’, liii:22 epw (2018) pp. 36, 40.
15 Ibid.; V.A.R. Nathan, ‘Dilution of SCs/STs Act’, 53:12 epw (2018) p. 4.

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cases under SC/ST Act in Gujarat were due to “technical lapses in investi-
gation and prosecution”.16 Hence, the judgment is accused of being a “grave
atrocity against SC/STs in itself” for making the Act toothless17 and a partial
judgment granting “licence for upper-caste culprits to violate the law with
impunity”.18 After protests from activist groups, Parliament passed an amend-
ment overruling the judgment.
Thirdly, the Supreme Court in 2015 held that the caste of a convert revives
upon reconversion to Hinduism and consequently they can avail of the ben-
efit of reservation.19 By doing so, it reinvigorates casteism. Because if a Dalit
converts to Islam or Christianity, unlike Sikhism and Buddhism,20 they are
prohibited from availing of the benefits of reservation which is argued by
some as a violation of Articles 14, 15 and 25 of the Indian Constitution.21 The
reservation policy in itself holds back the Dalits within the Hindu fold from
conversion, a means advocated for emancipation from untouchability.22 But
the recent judgment persuades even the Dalit converts to reconvert to Hin-
duism and revive their caste to benefit from the reservation. Paradoxically,
the Supreme Court observing that Dalits continue to face discrimination
even after conversion, instead of suggesting an extension of reservation ben-
efits to the converts wanted them to reconvert to Hinduism to claim those
benefits. Hence, the judgment appears to be a ‘bribe’ to reconvert the Dalits
and seems to make Hinduism more vibrant and alive, which in turn nour-
ishes the caste system. Shoaib rightly criticises the judgment for boosting
‘gharwapsi’.23
16 Anand Teltumbde, ‘Judicial Atrocity?’, 53:15 epw (2018) p. 14.

17 Ibid.
18 Nawsagaray, supra note 14.
19 K. P. Manu, Malabar Cements Ltd. v. Chairman, Scrutiny Committee for Verification of Com-
munity Certificate, Civil Appeal No. 7065 OF 2008.
20 Constitution (SC) Order, 1950.
21 S. Deshpande, ‘Dalits in the Muslim and Christian Communities: A Status Report on Cur-
rent Social Scientific knowledge’, p. 65, <http://ncm.nic.in/pdf/report%20dalit%20%20
reservation.pdf> (National Commission for Minorities, 17 Jan 2008), visited 1 March 2019;
see, generally, P. Louis, ‘Dalit Christians: Betrayed by State and Church’, 42 epw (2007)
p. 1410.
22 Reservation benefits were extended to Dalit converts to Sikhism because it was not a
threat to Hinduism. G. Shah, ‘Dalits and the State: An Overview’, in G. Shah (ed.), Dalits
and the State (Concept Publishing Co., New Delhi, 2002), p. 30.
23 S. Daniyal, ‘How the Supreme Court ruling on reservation benefits has given a boost
to gharwapsi’, Scroll.in, 28 Feb 2015, <https://scroll.in/article/710201/how-the-supreme
-court-ruling-on-reservation-benefits-has-given-a-boost-to-gharwapsi>, visited 1 March
2019.

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802 Bhimraj M
2.2 Conspiracy of Dalit Officials

Dalits being part of the government makes no significant change as they oper-
ate within the institutionalised caste system. The Khairlanji murders in 2006,
where four members of a Dalit family were tortured and brutally murdered, is
a fitting example of how Dalits also conspired to suppress the issue.24 Most of
the important officials dealing with the case were Dalits. By analysing the role
they played in suppressing the problem, Teltumbde argues that this demol-
ishes the myth that representation would solve the caste issue.25
2.3 Beyond Domestic Mechanisms

It seems that Ambedkar quickly sensed the ineffectiveness and incapability of
the post-independent government machinery to abolish the caste system. In
1953, he expressed his frustration in the parliament as follows, “I shall be the
first person to burn [the Constitution] … It does not suit anybody”.26 Further,
in an interview, he said that parliamentary democracy would not work in In-
dia due to its incompatibility with the Indian social structure, and proposed
communism as an alternative.27 And in 1955 he explained why he wanted to
burn the Constitution: “We built a temple for a god to come in and reside, but
before the god could be installed, if the devil had taken possession of it, what
else could we do except destroy the temple?”28 The Dalit movement in India
neither turned towards communism nor destroyed the temple occupied by the
devils. But, at least, they started to find solutions on the international stage.
When the state itself is the violator of Dalit rights, such an approach is not only
natural but also necessary.
3 Internationalisation of Caste-based Discrimination
Mehta says that although Ambedkar remained a key symbol, transnational

dalit activism (tda) departed from the former and other post-independent
24 A. Teltumbde, The Persistence of Caste: The Khairlanji Murders and India’s Hidden Apart-
heid (Navayana, New Delhi, 2014), p. 183.
25 Ibid.
26 ‘The Andhra State Bill, 1953’, National Informatics Centre, 2 September 1953, <http://rsde
bate.nic.in/rsdebate56/bitstream/123456789/588187/1/PD_04_02091953_7_p844_p924_3
.pdf>, visited 1 March 2019.
27 ‘Dr. B R Ambedkar exclusive interview with bbc’, bbc Hindi, 14 April 2018, <www.youtube
.com/watch?v=MO4nKp6QX1Y>, visited 1 March 2019.
28 C. Jaffrelot, ‘Which Ambedkar?’, The Indian Express, 26 December 2015, <https://indian
express.com/article/opinion/columns/which-ambedkar-in-parliament-and-for-rss/>,
visited 1 March 2019.

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anti-caste movements by the following three characteristics.29 First, it tran-

scended the nation-state framework. Secondly, it formulated the problem in a
universalist language of ‘human rights’. Thirdly, it sought solidarity with other
similar marginalised groups. And by doing so, they reinterpreted ‘caste’ as a
global phenomenon by employing the phrase ‘descent-based discrimination’
and not as something confined to Hinduism/India, challenging the popular
understanding of the subject.
She further identifies five non-linear but congruous episodes in the process
of tda, namely, Ambedkar’s letter to DuBois, the formation of the Dalit Pan-
thers, activism by the Dalit Diaspora, recognition of caste as a global phenom-
enon, and the future of anti-caste activism by redefining ‘Dalit’. Ambedkar, in
his letter to DuBois in 1946, identified similarities with the African Americans
and sought copies of their representations before the UN to follow suit.30 This
letter is cited to argue that Ambedkar had an interest in placing the issue be-
fore an international forum and this approach of identifying with people of
colour and to appeal to UN is said to have parallels with tda.31 Also, Dalits
identifying themselves with other marginalised groups is said to have coun-
tered their ‘political isolation’ in the country.32 In this aspect, one is reminded
of Dalits teaming up with the Britishers (although they were not marginalised)
to defeat the Peshwas, which is also a classic example of countering isolation.
3.1 Ambedkar and Internationalisation

This section argues that even before his letter to DuBois, Ambedkar had the
intention of internationalising the caste issue. First, in 1927, before the historic
Mahad Satyagraha, Ambedkar warned the government that he would take up
the issue before the League of Nations (LoN) if it prevented the Depressed
Classes from exercising their legitimate rights.33 Also, before departing to at-
tend the First Round Table Conference in 1930, Ambedkar addressed a send-off
29 Ambedkar emphasised the minority identity of Dalits, as distinct from Hindus, as a tool
for empowerment and fought for rights primarily within the nation-state. P. Mehta, ‘Re-
casting Caste: Histories of Dalit Transnationalism and the Internationalization of Caste
Discrimination’ (PhD dissertation, University of Michigan, Ann Arbor, MI, 2013), p. 3.
30 Ambedkar did not submit a petition to the UN. See, generally, S.D. Kapoor, ‘B R Ambedkar,
W E B DuBois and the Process of Liberation’, 38:51 epw (2003) pp. 5344–5349.
31 Mehta, supra note 29, p. 57; Ambedkar has written comparing untouchability with simi-
lar forms of discrimination practised in the world. B.R. Ambedkar, ‘The Untouchables
or Children of India’s Ghetto’, in Dr. Babasaheb Ambedkar Writings and Speeches, vol. 5
(Dr. Ambedkar Foundation, Ministry of Social Justice & Empowerment, Govt. of India
2014).
32 Mehta, supra note 29, pp. 52–93.
33 D. Keer, Dr. Ambedkar Life and Mission (Popular Prakashan, Mumbai, 1954), p. 92.

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804 Bhimraj M
gathering, and assured them that he would meet world leaders to acquaint
them with the problem, and if possible, would also take the issue before the
LoN.34
Secondly, while giving testimony before the Simon Commission in 1928,
Ambedkar demanded special protection for Dalits as ‘minorities’ distinct from
caste Hindus in the new constitution for British India.35 During the testimony,
he noted the right given to minorities in European Constitutions to appeal to
the LoN if they felt their guarantee was unfulfilled. He said that he had given
‘special attention’ to such mechanisms.36
Thirdly, for a Peace Conference in Canada in 1942, Ambedkar wrote a paper
on the protection of untouchables as he considered it as the best opportunity to
“draw the attention of the world” to the issue.37 He compared the plight of the
untouchables and the Sanatanism of Hindus to that of the Jews and Nazism,
respectively. He further added, “the world owes duty to the untouchables …
to break their shackles and set them free”. Accordingly, he claimed that Hindus
have to answer before the “bar of the world”.38
Fourthly, the Cripps Missions in 1942, due to the absence of protective
mechanisms for the Depressed Classes in the proposed Constituent Assembly,
offered for their protection a treaty mechanism in the line of LoN minority
treaties to be signed between Constituent Assembly and the British govern-
ment.39 Ambedkar staunchly opposed it for lack of enforcement options. He
said that it was impossible to believe the British would use coercive force or
start a trade war to enforce the treaty and accused it of being an “empty for-
mula”. 40
From the above, it is clear that Ambedkar wanted the world to know about
the problem and considered approaching the international forum as an op-
tion, albeit secondary to constitutional safeguards. And such an attitude is
also natural, as human rights was only at a nascent stage during that period.
Although this section touches upon Ambedkar’s viewpoint of utilising inter-
national law mechanisms very briefly, its significance is substantial when seen
34 Ibid., p. 145.
35 Dr. Babasaheb Ambedkar Writings and Speeches, vol. 2 (Dr. Ambedkar Foundation, Minis-
try of Social Justice & Empowerment, Govt. of India, 2014), pp. 459–489.
36 Ibid., p. 479.
37 Dr. Babasaheb Ambedkar Writings and Speeches, vol. 9 (Dr. Ambedkar Foundation, Minis-
try of Social Justice & Empowerment, Govt. of India, 2014), pp. 397–398.
38 Ibid.
39 Dr. Babasaheb Ambedkar Writings and Speeches, vol. 10 (Dr. Ambedkar Foundation, Min-
istry of Social Justice & Empowerment, Govt. of India, 2014), p. 447.
40 Ibid., p. 460.

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against the background of the literal nonexistence of literature on the sub-

ject. Even Third World Approaches to International Law (twail) scholars who
claim to echo the aspirations of the people of the third world were only active
in analysing the contributions of Gandhi and Nehru but ignored the writings
of Ambedkar.41
3.2 Transnational Dalit Activism

Rahul describes the path travelled by the Dalit activists to reach the interna-
tional community as a “long and torturous road”.42 The above statement must
be seen in the background of the fact that the Indian government was cautious
in attaching the Dalits to the international organisations. All of those who rep-
resented India “at the international level in the field of international law”, for
instance, icj judges from India, were from the privileged castes.43 And the in-
ternational legal scholarship is unsurprisingly silent on the issue.44 However,
this does not mean that if the Dalits represented the Indian government at the
international level, that they would have made the world community aware of
caste discrimination. Earlier in this section, it was argued that nominal repre-
sentations of Dalits have no substantial effect in addressing the issue, as they
work within the government machinery where casteism is institutionalised.
The same applies to India’s representation in international organisations. In-
dia does not follow the reservation system in its nominations to international
organisations. But one cannot ignore the fact that Dalit representation in in-
ternational organisations would have surely been a factor inducing Dalit youth
to study international law. Consequently, there would have been literature
on “caste discrimination and international human rights law” or “Ambedkar
and international law” to catalyse the tda. Therefore, it may not be wrong to
conclude that the burden of internationalising caste discrimination fell heav-
ily upon the shoulders of Dalit activists in the absence of international legal
scholarship on caste discrimination.
41 As Burra rightly pointed out, “twail scholarship, essentially focusing on anti-colonial

struggles as a conceptually uniting factor, is inclined towards analyzing the contributions
of personalities like Gandhi and Nehru, in the process ignoring people like Ambedkar
who had fundamental differences with them”. S. Burra, ‘twail’s Others: A Caste Critique
of Twailers and Their Field of Analysis’, 33 Windsor Yearbook of Access to Justice (2016)
pp. 111, 124–26.
42 R. Kumar, ‘UN Special Rapporteurs to Give Fillip to Struggle for Dalit Rights’, 12 Common-
wealth Human Rights Initiative Newsletter (2005) p. 20.
43 Burra, supra note 41, pp. 122–123.
44 Ibid.

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806 Bhimraj M
The role of Dalit civil societies, particularly the Dalit diaspora in the US and
UK, are regarded as instrumental in making the problem visible to the world.45
The Dalit diaspora formed Ambedkarite organisations and networks to fight
against the discriminations faced by their counterparts in India. Lennox says
that the early Dalit organisations, from 1982–1998, targeted four prominent hu-
man rights organisations, namely the UN Sub-Commission on Human Rights,
the UN Working Group on Indigenous Populations (unwgip), the UN Spe-
cial Rapporteur on Racism, Racial Discrimination, Xenophobia and Related
Intolerance, and the World Conference on Human Rights, 1993.46 Needless to
say again, international legal scholarship on caste discrimination would have
guided or rather streamlined the efforts of the activists to focus on a particular
organisation.
Dr. Laxmi Berwa’s testimony before the UN Sub-Commission in 1982, and
later in 1995, was momentous. He compared the plight of Dalits with that of
the Jews under Hitler, and argued that caste-based discrimination is not an
internal problem.47 His works are considered essential in the shift away from
identity politics and the use of human rights language through comparison
and analogy.48 After the testimony, says Lennox, there was an “unexplained
Dalit silence in the UN until the early 1990s”.49 tda gained momentum in the
1990s. Activists attended the unwgip, UN Working Group on Minorities and
the 1993 Vienna Conference,50 submitted applications to the UN Special Rap-
porteur on Racism, and submitted a shadow report to cerd. They demanded
a UN investigation on caste through fact-finding commissions, country visits
and such like.51
Although according to Lennox, the early attempts by ngos (1982–1998) had
no significant impact as they did not focus on one UN institution,52 Mehta says
that the recognition by cerd that ‘descent’ in icerd refers to caste and hence,
45 Mehta, supra note 29, pp. 70–80; C. Bob, ‘“Dalit Rights Are Human Rights”: Caste Discrimi-
nation, International Activism, and the Construction of a New Human Rights Issue’, 29
hrq (2007) p. 167.
46 C. Lennox, ‘Mobilising for Group-Specific Norms: Reshaping the International Protection
Regime for Minorities’, (PhD Thesis, London School of Economics and Political Science,
2009), p. 119.
47 Bob, supra note 45, p. 177.
48 Mehta, supra note 29, pp. 74–80.
49 Lennox, supra note 46, p. 119.
50 At the regional prepcom conference, ngo adopted a resolution regarding untouchability.
Ibid., p. 120.
51 Ibid., p. 121.
52 Ibid., p. 122.

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caste discrimination is a form of racial discrimination in 1996 was a milestone

and a major success of Dalit activism.53 This interpretation paved the way for
the reconceptualisation of caste. Both agree on the prominence of the Human
Rights Watch (hrw) report on the untouchables which not only helped in
catalysing internationalisation of the issue but also consolidated Dalit activ-
ists across the country.54 As a result, the National Campaign for Dalit Human
Rights (ncdhr), an organisation which played an important role in the 2001
Durban Conference, was formed in 1998. It was the establishment of ncdhr,
according to Lennox, which marked the second wave of tda (1998–2008) as
they turn out to be ‘norm entrepreneurs’. He says that before they had only
“nascent agendas” such as holding the government responsible for pressuris-
ing them although they also demanded that the problem was recognised as a
human rights issue which fell within icerd.
In its 1999 Black Paper on caste-based discrimination,55 ncdhr appealed
to the Indian government and international human rights organisations to
recognise “Dalit Rights as Human Rights”.56 According to Lennox, the hrw’s
report and the ncdhr’s Black Paper not only made the campaign visible, but
maintained a weak “leverage against the government”. Another significant
event was the creation of the International Dalit Solidarity Network (idsn)57
in 2000, whose work is regarded as critical in the creation of a vibrant transna-
tional advocacy network.58 Its members had good relations with the UN Sub-
Commission and cerd which they used for lobbying purposes. The activists
wanted caste discrimination to be declared a violation of ihrl and viewed the
World Conference Against Racism (wcar) in 2001 as a political opportunity.59
3.3 The 2001 Durban Episode

In 1997 the UN General Assembly decided to convene a world conference to
combat racism, racial discrimination, xenophobia and related intolerance.60
53 Mehta, supra note 29, p. 82.

54 Ibid., p. 83.
55 Ibid., pp. 136–64.
56 They also demanded the UN recognise caste-based discrimination as a crime against hu-
manity, to deem caste as racial discrimination under icerd and to appoint a Special Rap-
porteur. Bob, supra note 45, p. 180.
57 “idsn is a network of international human rights groups, development agencies, national
Dalit solidarity networks from Europe, and national platforms in caste-affected coun-
tries”, idsn, <https://idsn.org/about-us/>, visited 11 March 2019.
59 Lennox, supra note 46, p. 125.
60 Before this, there were two World Conferences against Racism held in 1978 and 1983. UN
General Assembly, ‘Third Decade to Combat Racism and Racial Discrimination and the

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808 Bhimraj M
As a result in 2001, wcar was organised in Durban, and was preceded by sev-
eral regional preparatory and ngo conferences. These preparatory meetings
were adequately utilised by the Dalit activists, including women, to further
their cause.61 In spite of opposition from India, the activists succeeded in in-
cluding caste-based discrimination in the Asian Preparatory Meetings’ ngo
declaration and paragraph 73 in the wcar’s Draft Declaration and Programme
of Action (ddpa) contained the phrase ‘Discrimination based on Work and
Descent’ (dwd) which paved the way to discuss caste.62 But ultimately India
succeeded in removing that paragraph from ddpa. Nevertheless, the Dalit ac-
tivists were successful in “getting a lengthy discussion of caste”.63
3.3.1 India’s Opposition

The Indian government, irrespective of whether the bjp or Congress was in
power, prevented the discussion of caste on the international stage, the for-
mer during the wcar and the latter during the Durban Review Conference,
2009 (drc). It is worth recalling here the criticism of Paul Divakar that the
opposition of India was “stance of the bureaucracy, not the government”.64 In-
dia’s state practice suggests that its “formal or legal opposition” is not against
the internationalisation of caste per se but only against reconceptualisation
of caste as dwd which in turn renders it racial discrimination.65 The issue
of the confrontation between the Dalit activists and the Indian government
at the wcar may be said to be a conflict between portraying ‘caste’ as ‘race’
by the former versus the popular/statist understanding of caste. Generally,
India countered the internationalisation of caste as racial discrimination by
making the following arguments.66 First, it maintained that caste is distinct
convening of a world conference against racism, racial discrimination, xenophobia and

related intolerance’, 18 February 1998, UN Doc A/res/52/111.
62 Ibid., pp. 174–176.
63 Ibid., p. 188.
64 D. Mitra, ‘Stung by UN Report on Caste Discrimination, India Cries Foul’, The Wire,
25 March 2016, <https://thewire.in/diplomacy/stung-by-un-report-on-caste-discrimina
tion-india-hits-back>, visited 20 March 2019.
65 Keane and Waughray, supra note 3, p. 137.
66 India once proposed including ‘caste’, as a ground in Art. 2 of udhr in the 3rd session of
the Third Committee of the General Assembly. But later it did not insist on the proposal
as it felt the words “other status” and “social origin” were sufficiently broad. P. Thorn-
berry, ‘The Convention on Elimination of All Forms of Racial Discrimination, Indigenous
Peoples and Caste/Descent-Based Discrimination’, in Joshua Castellino and Niamh Walsh
(eds.), International Law and Indigenous Peoples (Martinus Nijhoff Publishers, Leiden,
2005), p. 37.

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from race.67 Secondly, it argued caste is a domestic issue, and any attempt by
the international community to address it would be a threat to its sovereignty.
Thirdly, that caste discrimination has already been made illegal in the mu-
nicipal laws and the government is committed to eradicating the same and
securing the rights and uplifting the lives of Dalits.
More importantly, one of the strategies India adopts in preventing discus-
sions on caste as a form of racial discrimination in international fora which
needs emphasis is maintaining its image as a nation committed to eliminating
racial discrimination by following the ideology of M.K. Gandhi whom it por-
trays as a “victim turned protagonist” against racism. But the recent incident of
removal of the statue of Gandhi from Ghana University for his ‘racist’ writings
will have been a severe blow to India’s image as a ‘Gandhian nation’ committed
to eliminating racial discrimination.68 The demand by the Ghana University
Professor who was one of the leaders of the campaign to remove the statue
of Gandhi for a statue of Ambedkar will be a significant boost to the tda.69 It
is suggested that the Dalit activists should capitalise on this issue and further
67 In India as well, the debate was intense among scholars divided along similar lines ex-
pressing their concerns, particularly in newspaper articles. Sociologists Dipankar Gupta,
who once testified before the cerd, and Andre Béteille, member of the Committee to
draft India’s response at UN, premised their arguments against the discussion of caste
at wcar on the distinction between caste and race. See, generally, Das, supra note 12; N.
Menon, ‘Caste on the International Stage’, 46 epw (2011) p. 15; D.E. Berg, ‘Sovereignties,
the World Conference against Racism 2001 and the Formation of a Dalit Human Rights
Campaign’, 20:1 Questions de recherché (2007) pp. 10–13. Supporters of the discussion of
caste at the wcar, advocated the racial origin of caste based on the varna model (varna
meaning ‘colour’). Some said caste may not be race but compared its similar forms of dis-
crimination and argued that ‘legally’, caste discrimination might amount racial discrimi-
nation. In a New Delhi Conference of ngos, academicians and activists, some argued
‘caste is race plus’, i.e. caste is worse than race. See, generally, B. Raina, ‘Caste and race:
Discrimination by Any Name’, 36 epw (2001) p. 3025; A. Pinto, ‘UN Conference against
Racism: Is Caste Race?’, 36 epw (2001) p. 2817; S. Visvanathan, ‘The Race for Caste: Prole-
gomena to the Durban Conference’, 36 epw (2001) p. 2512.
68 “Racist”, Gandhi statue removed from University of Ghana’, bbc, 13 December 2018,
<www.bbc.com/news/world-africa-46552614>, visited 20 April 2019.
69 The Professor said: “In India, if you want to give us a statue, give us a statue of Ambedkar.
That is whose writings we can relate to as Black people”. He advances a racial theory of
casteism by equating Brahmins with white and Dalits with black people. He also observed
that Gandhi was an enemy both of Dalits and blacks and emphasised the need to “destroy
the improper propaganda about Gandhi”. Sagar, ‘Give us a statue of Ambedkar, not Gan-
dhi: Ghana University professor Ọbádélé Kambon’, The Caravan, 13 January 2019, <https://
caravanmagazine.in/caste/gandhi-must-fall-interview>, visited 20 April 2019.

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810 Bhimraj M
portray Gandhi as a common enemy to both blacks and untouchables, thereby

strengthening the solidarity among themselves and destroying the image of
India as a ‘Gandhian nation’.
The speech by Omar Abdullah, then Minister of State for External Affairs,
before the wcar reflected the position of India.70 After condemning the evil
consequences of colonialism, i.e. slave trade, he expressed his concern about
the propagation and practice of racial superiority in spite of biological evi-
dence refuting such beliefs. This statement appears to be in stark contrast to
the arguments advanced by Béteille and then-Attorney General Soli Sorabjee,
who defended race as a “biological concept” to distinguish it from caste, there-
by preventing the discussion of caste at wcar.71
Next, Abdullah boasted about the human rights, democracy and affirmative
action measures enshrined in the Constitution and the government’s convic-
tion in upholding the same. But his statement “our society has a long tradition
and capacity for dialogue and building consensus” seems to pervert the vicious
history of casteism which ostracised the untouchables. In this context, it seems
appropriate to recall T.K. Oommen who criticised D.P. Mukherjee for calling
the Hindu Shastras ‘sociological’, because the majority of the Hindu popula-
tion (Shudras, untouchables and women) had no role in making it and their
life experiences were ignored.72
Ultimately, coming to the core issue, Abdullah accused the propaganda of
inclusion of caste as “highly exaggerating and misleading, often based on an-
ecdotal evidence”. He added, “we are not here to engage in social engineering
within member states … It is neither legitimate nor feasible nor practical for
this World Conference or, for that matter, even the UN to legislate, let alone
police, individual behaviour in our societies”.73
Ironically, the speech by Abdullah, who felt proud of the democratic values
of the Constitution, in itself was undemocratic. Neither the Parliament nor the
70 ‘India Statement by H.E Mr. Omar Abdullah’, United Nations, 2 September 2001, <www
.un.org/WCAR/statements/indiaE.htm>, visited 11 March 2019.
71 Although Dipankar Gupta argued against discussion of caste at wcar, he accepted that
caste and race are social constructs. D. Gupta, ‘Why Caste Discrimination is not Racial
Discrimination’, (2007), <https://azimpremjiuniversity.edu.in/SitePages/pdf/BM_Misrep
resenting%20caste%20and%20race,%20SeminarComment.pdf>, visited 23 January 2019.
But Béteille and Soli Sorabjee argued race as a biological concept: P. Das, ‘“Is Caste Race”
Discourses of Racial Indianization’, 43 Journal of Intercultural Communication Research
(2014) p. 264.
72 T.K. Oommen, ‘Understanding Indian Society: The Relevance of Perspective from Below’,
(Occasional Paper Series: 4, University of Pune, 2001).
73 Supra note 70.

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National Human Rights Commissions were consulted by the government be-

fore making such a decision. In contrast, Justice K. Ramaswamy, then-member
of the National Human Rights Commission (nhrc), advocated a discussion of
caste-based discrimination at the wcar.74 Pravin Rastrapal, then Member of
Parliament (MP), raised the issue before Lok Sabha on 2 August 2001.75 He
said that he was shocked about the decision of the government not to allow
the issue of caste to be discussed in the wcar and demanded a reason for
this. But he was interrupted by other members. Another MP, Adhir Chowd-
hary, incidentally spoke about the issue of caste at wcar on 24 August while
debating a bill relating to reservations.76 He criticised the government’s stand
that caste is an internal matter and not to be discussed at the world forum
as “ridiculous bogey”. He quoted an article which argued that the wcar is an
internal mechanism as India has ratified the icerd and utilising such inter-
national m echanisms will only empower the national government to fulfil its
constitutional obligations.
Post-Durban, in its annual report for 2001–2002 criticising the stand of India
at the wcar, the nhrc said that the attention must be on the form of dis-
crimination instead of nomenclature. It further emphasised that the debate
on co-terminality of caste and race is not the “essence of the matter”.77 The
drc, which was convened to assess the implementation of the ddpa, again
ignored in its outcome document the issue of caste mainly due to the opposi-
tion from India and Japan.78 Post-Durban, the Dalit activists, also targeted the
South Asian Association for Regional Cooperation and various foreign govern-
ments which resulted in the latter holding discussions on the caste issue. For
instance, the European Union and European Parliament passed resolutions
condemning caste discrimination.79
74 Speaking at the conference, he said that what matters is discrimination and not nomen-
clature. Mehta, supra note 29, p. 187.
75 ‘Thirteenth Lok Sabha’, Lok Sabha Secretariat, 2 August 2001, <http://164.100.47.194/
Loksabha/Debates/Result13.aspx?dbsl=2594>, visited 9 March 2019.
76 ‘Further Discussion on the Scheduled Castes and the Scheduled Tribes … on 24 August,
2001’, Indian Kanoon, <https://indiankanoon.org/doc/1931733/>, visited 9 March 2019.
77 nhrc, National Human Rights Commission: Annual Report 2001–2002, p. 103.
78 Again this stand by India was criticised by emphasising the discrimination irrespective of
nomenclature. A. Teltumbde, ‘Race or Caste, Discrimination Is a Universal Concern’, 44
epw (2009) p. 16; see, generally, ‘Caste Out, Yet Again’, 44 epw (2009) p. 5.
79 ‘EU Resolutions on Caste’, idsn, <https://idsn.org/eu/eu-resolutions-on-caste/>, visited
9 March 2019; ‘Caste References in Other EP Resolutions’, idsn, <https://idsn.org/eu/eu
-resolutions-on-caste/caste-references-in-other-ep-resolutions/>, visited 9 March 2019.

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812 Bhimraj M
4 Caste’ as Descent-based Discrimination: Convincing or

‘Compromising?
Both the Charter-based80 and Treaty-based UN human rights bodies have
80 Office of the High Commissioner of Human Rights (ohchr), unhrc and Special Pro-
cedures are collectively called as Charter-based Bodies. ohchr, ‘Human Rights Bodies’,
ohchr, <www.ohchr.org/en/hrbodies/Pages/HumanRightsBodies.aspx>, visited 8 May
2019. ohchr plays a leading role, as the principal body responsible for UN Human Rights
activities, in the protection and promotion of human rights by assisting Governments,
also by field presences, in implementing human rights standards, supervising and coordi-
nating the human rights activities of the UN. (F.D. Gaer, ‘The Effectiveness of the United
Nations Human Rights Protection Machinery: The UN High Commissioner for Human
Rights’, Proceedings of the Annual Meeting (American Society of International Law) (2014),
p. 281). unhrc, established in 2006 by the GA, acts as the central UN body in promoting
and protecting human rights. It replaced the UN Commission on Human Rights (unchr)
which was criticised for its poor performance, particularly for allowing countries commit-
ting human rights violations as members. A/59/565, 2 Dec 2004, <www.un.org/ruleoflaw/
files/gaA.59.565_En.pdf>, visited 12 May 2019. unhrc differed from its predecessor sub-
stantially in matters of membership, election process and more importantly, in its work-
ing method as it introduced the ‘Universal Periodical Review’, (upr). upr, a cooperative
mechanism to review the fulfilment of human rights obligations and the commitments of
States, was envisaged to complement and not duplicate the works of Treaty bodies. Rodley
says that although there are possibilities of duplication of work, they are not numerous
and can easily be avoided by cooperation. (N. Rodley, ‘United Nations Human Rights Trea-
ty Bodies and Special Procedures of the Commission on Human Rights: Complementarity
or Competition?’, 25 hrq (2003) p. 882.) Although the upr mechanism is considered to be
an innovative reform, it is criticised for its politicisation, selectivity and double standards
which makes one pair of authors question its effectiveness in re-establishing credibility.
(S. Johnson and N. Mack, ‘The United Nations Institutions: A Critical Analysis of Their
Ability to Promote and Protect International Human Rights’, 15 nucb jlcc (2014) p. 5).
Special Procedures, described by Kofi Annan as “Crown Jewels”, are mechanisms under
unhrc (previously under unchr) consisting of independent experts mandated to re-
port and advise on human rights situations from a thematic or country-specific perspec-
tive. They are either an individual called as a Special Rapporteur/Independent Expert or
Working Group of five members. They undertake country visits, indulge in fact-finding
analysis, act on alleged human rights violations by sending communications to states etc.
Their impact lies in the creation of awareness of the problem or situations which cre-
ates an embarrassment or shame to the countries resulting in a change in their policies.
Primarily by their country visits they validate the allegations, raise public awareness and
elevate the issue on national agenda. (T. Piccone, ‘Human Rights Special Procedures: De-
terminants of Influence’, Proceedings of the Annual Meeting (American Society of Interna-
tional Law) (2014), p. 288). The contribution of Special Procedures is said to be significant
in standard setting and influencing the elaboration, interpretation and implementation

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a ddressed caste discrimination in their reports.81 This section examines the re-
ports of the former, particularly that of the UN Sub-Commission and the 2016
Report of the Special Rapporteur on Minority Issues.82 Because, first, the cat-
egory of dwd, of which caste is a notable form, was particularly developed
by the UN Sub-Commission ultimately leading to the submission of Draft
Principles and Guidelines for the Effective Elimination of dwd in its final re-
port. And the recent study of dwd by ohchr is expected to produce a Dec-
laration on the issue in the future.83 This transformation of caste as dwd in
international law, where ‘caste-like’ structures were found in many regions of
the world, raises several significant questions as it contradicts the traditional/
textbook understanding of caste system being confined to Hinduism. Against
this background, whether dwd captures the intricacies of casteism in India is
an important question. If not, then the recent movement towards the elimina-
tion of dwd would not do much in annihilating casteism. Secondly, the 2016
Report, as mentioned earlier, has opened the doors of minorities rights frame-
work to address caste discrimination. What impact would it create on tda?
Is it a revival of Ambedkar’s strategy of emphasising the ‘minority’ identity of
Dalits for their political emancipation? These are some of the questions ad-
dressed here.
4.1 UN Sub-commission’s Working Papers on dwd

In parallel to cerd’s consideration of caste via descent, the UN Sub-Commission
has evolved a new international legal category dwd, whose conceptualisation
was primarily based on the views of cerd on ‘descent’, particularly its GR
No. 29.84 The UN Sub-Commission, as noted earlier, played a significant role
in expounding the “nebulous”85 dwd by identifying common discriminatory
practices throughout the world based on ‘work and descent’. Its Resolutions,
of ihrl. (S.P. Subedi et al., ‘The role of the special rapporteurs of the United Nations Hu-
man Rights Council in the development and promotion of international human rights
norms’, 15 The International Journal of Human Rights (2011) p. 155.)
81 idsn, supra note 6.
82 Universal Periodic Review of India is not examined here.
84 As caste can be “determinative of one’s occupation” caste-based discrimination is also
referred to as or addressed under dwd. unhrc, supra note 5, p. 6; UN Network on Racial
Discrimination and Protection of Minorities, Guidance Tool on Descent-Based Discrimi-
nation: Key Challenges and Strategic Approaches to Combat Caste-Based and Analogous
Forms of Discrimination (2017), p. 2.

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814 Bhimraj M
apart from declaring dwd as violative of ihrl and recommending states take
appropriate actions, entrusted Special Rapporteurs to undertake a study on
the issue. As a result, a series of working papers were submitted to the UN
Sub-Commission from 2001 to 2009. The first working paper by Goonesekere in
2001 found dwd to be a long-standing practice in many societies manifesting
itself most notably in caste- or tribe-based distinctions.86 It identified commu-
nities suffering from dwd in South Asia based on the nature of discrimination,
namely, “prohibitions on intermarriage between socially or occupationally de-
fined groups; physical segregation of communities; restrictions upon access to
resources including land, water and other means of production; social prohibi-
tions regarding physical contact such as sharing food or utensils; restrictions
on access to education or segregation in educational facilities; restrictions on
access to religious buildings and restrictions on participation in religious
ceremonies”.87
Next, the expanded working paper submitted in 2003 dealt with commu-
nities suffering from dwd outside South Asia.88 The second expanded work-
ing paper submitted in 200489 discussed the legal, judicial, administrative and
educational measures adopted by the governments to eradicate dwd in their
concerned states. It also identified the practice of dwd among the diaspora
communities. In furtherance of its mandate, by “taking full account of the con-
tents” of GR No. 29, the working paper proposed three draft Principles and ten
Guidelines. And it recommended the UN Sub-Commission appoint a Special
Rapporteur to finalise them based on the reply to the questionnaire which is
to be transmitted by the ohchr to the Governments, National Human Rights
86 dwd was found to be widespread in societies associated with caste. unchr (Sub-
Commission), ‘Working paper by Mr. Rajendra Kalidas Wimala Goonesekere on the topic
of discrimination based on work and descent’, 14 June 2001, UN Doc E/CN.4/Sub.2/2001/16.
87 Ibid. Factors in GR No. 29 to identify the communities were similar. The following factors
were in addition to the Goonesekere Report, “inability or restricted ability to alter inher-
ited status, limitation of freedom to renounce inherited occupations or degrading and
hazardous work, subjection to dehumanizing discourses of pollution or untouchability
and generalized lack of respect for their human dignity and equality”. uncerd, supra
note 22.
88 unchr (Sub-Commission), ‘Expanded working paper submitted by Mr. Asbjørn Eide and
Mr. Yozo Yokota pursuant to Sub-Commission decision 2002/108’, (26 June 2003) UN doc
E/CN.4/Sub.2/2003/24.
89 unchr (Sub-Commission), ‘Expanded working paper by Mr. Asbjørn Eide and Mr. Yozo
Yokota on the topic of discrimination based on work and descent’, (5 July 2004) UN Doc
E/CN.4/Sub.2/2004/31.

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Institutions and ngos. Accordingly, the 2005 report,90 apart from annexing
the different questionnaires to be sent to the relevant bodies, emphasised
the importance of two documents adopted by the idsn and Buraku Libera-
tion League suggesting certain principles and guidelines for the elimination
of dwd. Those two documents, the proposed draft Principles in the previous
report and GR No. 29 would form the “source of insights in the future work
of the Sub-Commission in formulating draft Principles and Guidelines” for
the effective elimination of dwd. Consequently, the UN Sub-Commission ad-
opted Resolution 2005/22 approving the request to send the questionnaire to
relevant bodies, requesting the Special Rapporteurs to reflect on the replies
to those questionnaires in their Progress Report and to continue the work on
drafting the Principles and Guidelines for the elimination of dwd.
The Progress Report submitted in 200691 analysed the replies received from
the relevant bodies. At the outset, it acknowledged the difficulties in defining
dwd due to its complexities and also called any such attempt unwise. It de-
scribed dwd briefly and broadly as
any distinction, exclusion, restriction or unfavorable treatment based on

occupation, present or ancestral, and family or community origin, or any
other related factors such as name, birthplace, place of residence, and
language, including dialect and accent”.92
In drafting the revised Principles and Guidelines, the Special Rapporteurs

considered, apart from GR No. 29, several treaties emphasising equality and
non-discrimination.
Based on the responses several discriminatory practices due to work and
descent were identified throughout the world (particularly in Asia and Africa),
namely, untouchability, segregation, exploitation, violence, economic margin-
alisation, illiteracy, children performing degrading jobs, poor health conditions,
political disempowerment (the exception being India), poor implementation
of laws and biases affecting access to justice, landlessness, discrimination by
90 unchr (Sub-Commission), ‘Preliminary report by Yozo Yokota and Chin-Sung Chung on

discrimination based on work and descent’, (21 June 2005) UN Doc E/CN.4/Sub.2/2005/30.
91 unhrc, ‘Progress report of Mr. Yozo Yokota and Ms. Chin-Sung Chung, Special Rappor-
teurs on the topic of discrimination based on work and descent’, (28 July 2006) UN Doc A/
HRC/Sub.1/58/crp.2.
92 “This is not a perfect description and the Special Rapporteurs welcome any proposal to
improve this description or better alternative”. Ibid., p. 5.

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816 Bhimraj M
using caste as a surname,93 and multiple discrimination faced by women. It

also noted the following: the impact of globalisation, liberalisation and pri-
vatisation on the affected communities, the serious threat to traditional oc-
cupations which in itself is a heinous form of discrimination, the contraction
of public sector particular affecting the employment through quotas in India,
increased poverty, eviction in the name of development, uncivil activities by
transnational corporations, etc. In short, the progress report identified the na-
ture of dwd extensively practised throughout the world. The report also dis-
cussed the measures taken by the member states to eradicate dwd.
4.1.1 Draft UN Principles and Guidelines for the Effective Elimination

of dwd
The Final Report of 2009 annexed the finalised draft Principles and Guide-
lines.94 To fulfil the mandate, the Special Rapporteurs visited Bangladesh, Paki-
stan and India to observe the affected communities, participated in meetings
and conferences on the issue conducted by the ngos working in the field. The
finalised Principles reflected the proposals and suggestions of the informal ex-
pert consultation meeting organised by idsn in Kathmandu in which affected
communities also participated. As only ten countries and two national human
rights institutions (excluding international bodies and ngos) replied to the
questionnaire which was analysed in the Progress Report,95 the Special Rap-
porteurs decided to send the Progress Report to all the UN member states to
elicit their responses. Consequently, five states expressed their views. Neither
India nor the national human rights institutions seem to have replied.
The finalised Principles, taking into account in its preamble GR No. 29
and the cerd’s Concluding Observations strongly condemned dwd, “includ-
ing discrimination based on caste and analogous systems of inherited sta-
tus, as a violation of human rights and international law”. The Principles for
the first time defined dwd, modelled on the definition of ‘racial discrimina-
tion’ in icerd. dwd was defined as “any distinction, exclusion, restriction, or
93 In many countries the names of the persons include their caste name. To eliminate caste
discrimination, the states of those countries establish the law not to use caste names.
unhrc, supra note 91.
94 unhrc, ‘Final report of Mr. Yozo Yokota and Ms. Chin-Sung Chung, Special Rapporteurs
on the topic of discrimination based on work and descent’, (18 May 2009) UN Doc A/
hrc/11/crp.3.
95 The questionnaire was sent to “all the Member-States of UN, the National Human Rights
Institutions, the UN bodies and specialised agencies and the ngos at the end of Novem-
ber 2005 through the Office of High Commissioner for Human Rights”. nhrc of India also
did not reply.

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reference based on inherited status such as caste, including present or ances-

p
tral occupation, family…” (emphasis added), and emphasised the typical as-
sociation of dwd with untouchability and the notions of purity and pollution.
Principle 1 (fourth paragraph) declared dwd to be violative of ihrl. Prin-
ciple 2 recognised dwd as a major obstacle to development. Principle 3 called
for special care for women, children, etc., suffering from dwd. Principle 4
guaranteed a series of civil, political, economic, social and cultural rights to
the affected communities “including but not limited” to the right to own land,
freedom of religion, freedom to marry and cultural identity.96 Principle 5 im-
posed a duty upon states to “make sincere efforts to dispel” prejudicial beliefs
reinforcing dwd such as untouchability, pollution, and caste superiority or
inferiority. Principle 6 addressed the regional, international governmental
bodies, civil societies, private sectors to “assist” in eliminating dwd. Specific
Guidelines were also addressed to states and other actors to implement those
Principles. In general, it called on national and local governments to take ap-
propriate constitutional, legislative, administrative, budgetary and judicial
measures to eradicate the various forms of discrimination in the name of work
and descent as outlined in the Progress Report.
4.2 The 2016 Report of the Special Rapporteur on Minority Issues

The 2016 Report is without a doubt a milestone for two reasons: it is the first
UN comprehensive report on caste-based discrimination, and it has paved
the way for addressing caste-based discrimination within the minority rights
framework. The first comprehensive report from the UN on the issue coming
from Special Rapporteur on Minority Issues, instead of Special Rapporteur on
Racial Discrimination, is also unexpected. The 2016 Report focused on caste-
based discrimination as dwd and recognised that minority rights framework
could “provide a valuable platform” and “contribute” to eliminating “discrimi-
nation based on caste and analogous systems”.97 It appears to be substantially
similar to the UN Sub-Commission working papers, discussed above, in terms
of focusing on caste as dwd.
So, the main contribution of the 2016 Report is to acknowledge caste-
affected groups as minorities. At the beginning, the Report observed the “com-
plexity” of addressing the issue within the minority rights framework. Then
96 “[P]articular mention of terms such as ‘descent’, ‘work and descent’, or ‘discrimination’, is

not necessary for a right or duty recognized by international standards to merit special at-
tention in efforts to eliminate discrimination based on work and descent”. unhrc, supra
note 94, p. 10.
97 unhrc, supra note 5, p. 24.

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818 Bhimraj M
it was subsequently emphasised that the caste-affected groups, although they

“may belong to the same larger ethnic, religious or linguistic community”,
shared “minority-like characteristics, particularly their non-dominant and of-
ten marginalised position, stigma, and the historic use of the minority rights
framework to claim their rights”.98 Finally, it made several recommendations
of which the following deserve special attention: calling on states to address
the situation of caste-affected groups in implementing the Sustainable De-
velopment Goals by including caste-specific indicators;99 demanding special
attention for caste-affected women and girls; mandatory human rights edu-
cation in schools and revising the language in school textbooks to eliminate
“stereotypical and prejudicial portrayals of caste-affected communities”; call-
ing on states to promote and the unhrc to endorse the UN Draft Principles
and Guidelines for the Effective Elimination of dwd.
4.2.1 Dalits as Minority – Ambedkar’s Strategy

Reconstructing the identity of Dalits as a ‘minority’, “sharply distinct and ir-
reconcilably separate” from the caste Hindus and politically equivalent to the
Muslims is the predominant political strategy of Ambedkar for Dalit empower-
ment.100 Ambedkar claimed, “history of suffering inflicted by the caste Hindu
order provided the basis of [D]alits’ minority status”.101 This ‘minority status’ of
Dalits was emphasised, particularly in the Second Round Table Conference, to
claim constitutional safeguards.102
However, Ambedkar believed only “fraternity, which was another name of
religion”, not formal equality, could ensure Dalits a life of dignity and such fra-
ternity, which was absent in Hinduism, was guaranteed in Buddhism.103 And,
by reconceptualising Indian history as a conflict between Brahmanism and
Buddhism, Ambedkar traced the origins of untouchability to the defeat of the
latter by the former.104 He identified the Dalits as “former Buddhists” who later
became “objects of contempt” in the Brahmin social order, characterised by ex-
ploitation and inequality.105 So, the conversion of Ambedkar in 1956 is seen as a
“return to Buddhism” and citing the conversion, Mehta argues that Ambedkar
98 Ibid., p. 5.
99 See, generally, idsn, ‘Sustainable Development Goals (sdgs)’, idsn, <https://idsn.org/
un-2/post-2015-agenda/>, visited 7 May 2019.
101 Ibid., p. 35.
102 Ibid.
103 Ibid., pp. 36–37.
104 Ibid., pp. 38–44.
105 Ibid.

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rejected the strategy of emphasising the “Dalit identity difference” through the
“minority status” because Ambedkar’s Buddhism is a universal religion shared
by all people of the world.106
Accordingly, it may be inferred from Mehta’s argument that as Ambedkar
envisioned Buddhism as the ‘emancipatory project’ for Dalits, the relevance
of ‘minority status’ has become redundant. If that is what she meant, then it
seems that Mehta has viewed ‘claiming minority status’ and ‘conversion to Bud-
dhism’ as two ends of a spectrum. Such a view is problematic, and it is more
appropriate to view them both as a logical progression as explained below.
One can witness an overlap between Ambedkar’s strategy of emphasising
‘minority status of Dalits’ and ‘conversion as a means of emancipation’. The
former became the predominant strategy of Ambedkar in the 1930s according
to Mehta. However, in 1928 before the Simon Commission, Ambedkar claimed
constitutional safeguards for Dalits as a minority distinct from caste Hindus.
It was in the same year that Ambedkar staunchly advocated conversion as a
means of emancipation.107 He originally rejected Buddhism and opted for Is-
lam which is evident from his 1929 article entitled, “If you have to convert, be-
come Musalman”. And his 1935 speech at Yeola, shows that until then, one of
Ambedkar’s choices was Islam.
Although the minority status of Dalits was a strategy to claim constitu-
tional safeguards, it also seems to be an essential factor in making the Dalits
denounce Hinduism, which Ambedkar described as “a veritable chamber
of horrors” and the Hindu scriptures as “veritable instruments of torture …
forged against untouchables”.108 It may not be wrong to argue that to achieve
his emancipatory project of conversion Ambedkar separated the Dalits from
caste Hindus by emphasising their distinctness through their ‘minority sta-
tus’ and then merged them with a new universal identity or created a “new
moral community” as termed by Mehta. Ambedkar’s strategy of ‘Dalits as
minority distinct from caste Hindus’ served two purposes, namely, securing
constitutional safeguards and creating a new identity through mass conver-
sion. Hence, Ambedkar’s ‘conversion to Buddhism’ should not be viewed as a
106 Ibid., pp. 16, 34 and 51.

107 A. Teltumbde, ‘Why Ambedkar considered Islam the religion of choice for Dalits before
opting for Buddhism’, Scroll.in, 16 October 2018, <https://scroll.in/article/898332/why
-ambedkar-considered-islam-the-religion-of-choice-for-dalits-before-opting-for-bud
dhism>, visited 30 April 2019. Similarly, Periyar E.V. Ramasamy called the Dalits to convert
to Islam to secure a dignified life.
108 Dr. B.R. Ambedkar, ‘What Congress and Gandhi Have Done to Untouchables’, in Dr. Ba-
basaheb Ambedkar Writings and Speeches, vol. 9 (Dr. Ambedkar Foundation, Ministry of
Social Justice & Empowerment, Govt. of India, New Delhi, 2014), p. 296.

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820 Bhimraj M
d enouncement of ‘minority strategy’ but as a logical progression as the latter is

essential to achieve the former.
4.2.2 Does the 2016 Report Revive Ambedkar’s Strategy?

The 2016 Report, which on the face of it might seem to revive the minority
identity of Dalits, is fundamentally different from Ambedkar’s strategy. Be-
cause it does not acknowledge Dalits to be fundamentally different from caste
Hindus but in contrast admits that they may be part of the same larger reli-
gious community. The Report wanted to address caste discrimination within
the minority framework because the caste-affected groups share minorities-
like characteristics such as non-domination and marginalisation. Although
these sufferings were emphasised by Ambedkar to justify the minority identity
of Dalits, he pointed to Hinduism as the source of all the suffering inflicted
upon Dalits whereas the 2016 Report diluted the religious aspect of casteism.
This is merely a consequence of addressing caste as dwd in which the reli-
gious aspect of the caste system is compromised, as shown below. The 2016
Report observed that caste, although primarily associated with South Asian
and Hinduism, has a broader present meaning of “transcending religious affili-
ation”. It further said caste might be either religious or secular based.
4.3 dwd: Compromising the Religious Aspect of the Caste System

As there are instances where cerd has referred the social structures existing
outside South Asia as castes, Keane’s concern seems right in cautioning the
conflation of the caste system, particular of Hinduism, with other dwd there-
by diluting the intricacies of the former. Whether the UN Bodies acknowledge
any link between the caste system and Hinduism is in itself an important ques-
tion at the first instance as India in its reports still refuses to acknowledge any
such link. It appears that in the process of reconceptualising caste as dwd, the
religious aspect of the caste system is diluted, although not ignored.
During the discussion of the 1987 periodic report on India, cerd asked
whether the caste system “was to some extent the result of religious belief”,109
to which India seems to have not replied. In its 1996 Report, India observed
that the caste system was based on “functional division of society in ancient
times”.110 And when cerd posed a similar question to Sri Lanka, its represen-
tatives observed that the Sri Lankan caste system was a “racial phenomenon
that was not based on any religious factor”.111 Their arguments were based on
109 uncerd, ‘Report of the cerd on its 42nd Session’, (1987) UN Doc A/42/18, [768], [756].
110 UN cerd, UN cerd: State Party Report, India, 29 April 1996, UN Doc cerd/C/299/Add.3.
111 uncerd, supra note 109, [293].

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the premise that Buddhism was “very the antithesis of the caste system”.112
As for other countries, Nepal has accepted the connection between caste and
Hinduism.113
The UN Sub-Commission working papers over time also seem less con-
cerned with the religious justification of the caste system, although they ad-
dressed certain religious discriminations faced by Dalits. For instance, the
Goonesekere Report discussed the relation between Hinduism and the caste
system by analysing the views of Ambedkar and Gandhi on the issue, the for-
mer blaming Hinduism for the caste system and the latter denying it. But the
Report, instead of making any categorical statement, observed, “The debate as
to whether caste is or is not derived from Hindu scriptures need not detain us
because 85 per cent of India’s 1 billion people remain Hindu”.114 Nevertheless,
it discussed the Chaturvarna while discussing dwd in India.115
Next, the expanded working paper in 2003, unlike the previous report, ob-
served that the caste system has a strong association with Vedic prescriptions of
Hinduism.116 Further, it said of dwd outside South Asia that the link between
discrimination and religion was less clear. But the Progress Report observed,
“Another issue that emerges from the responses received describe in detail the
tenuous relationships” (emphasis added) between dwd and religious affairs.117
By employing the term ‘tenuous,’ it seems that the ritual or religious aspect of
the caste system is somewhat merged into the broader ocean of dwd. Simi-
larly, although the 2016 Report identified that the concept of ‘caste system’ was
primarily associated with South Asia and linked to Hinduism, it observed that
its present meaning has broadened “transcending religious affiliation” which
may be based on religious or secular background.118
As noted in section 3, the specificity of caste with Hinduism prevented
the efforts of internationalisation, and hence it was reconceptualised as
dwd. Consequently, as pointed out by Clifford Bob, “discrimination based on
work and descent includes no special focus on Hinduism or the Indian caste
system”.119 Nevertheless, the idsn seeks “separate and distinctive treatment” of
112 Ibid.
113 UN cerd, UN cerd: State Party Report, Nepal, 28 July 1997, UN Doc cerd/C/298/Add.1, 5.
114 unchr, supra note 86, p. 5.
115 About SL it said caste system was not based on Hindu varna.
116 unchr, supra note 88, [50].
117 unchr, supra note 91, p. 18.
118 unhrc, supra note 5, p. 6.
119 “[H]owever, outside the official United Nations context, both at home and abroad, Dalit
activists continue to emphasise the term “caste discrimination”. “In doing so, the idsn
maintains strong support among an Indian base most concerned about the Hindu caste

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822 Bhimraj M
caste discrimination as a particular form of dwd120 within the UN and outside

the UN context, using the phrase caste discrimination and maintaining its link
with Hinduism.121
The following are some of the serious consequences of diluting the link be-
tween caste and religion. First, it undermines religious conversion as a means
to emancipation. It is worth recalling here one of the oaths of Ambedkar while
he denounced Hinduism and embraced Buddhism along with lakhs of follow-
ers in 1956, “I thereby reject my old religion, Hinduism, which is detrimental to
the prosperity of humankind and which discriminates between man and man
and which treats me as inferior”.122 Although some still maintain, like the Indi-
an government, that caste system has nothing to do with Hinduism,123 scholars
such as M.N. Srinivas have rightly pointed out, “If and when caste disappears,
Hinduism will also disappear”.124
Secondly, by diluting the link between caste and Hinduism, the solution to
eradicating the discrimination focuses primarily on the secular aspects. Al-
though the UN bodies have addressed religious discriminations of the Dalits,
it has not been given the kind of importance it deserves. It is important here to
emphasise the criticism of T.K. Oommen on G.S. Ghurye for ignoring the issues
like temple entry while talking about the assimilation of untouchables into
Hindu society. 125 Oommen says that social change is impossible without at-
tacking the ritual dimension which is the ‘kernel’ of the caste system. Accord-
ingly, he continues, “one may attack the Hindu Shashtras so as to de-legitimise
the caste system and the untouchability that it entails”.126 Although both the
system, even while folding itself within the broader category of work-and-descent-based
discrimination used in the United Nations”. Bob, supra note 45, p. 191.
120 ‘idsn position paper on the Interrelations between Caste, Descent and Race’, idsn,
<https://idsn.org/wp-content/uploads/user_folder/pdf/New_files/IDSN/IDSN_position
_paper_on_Caste_Race_and_Descent_12-4-2010_FINAL.pdf>, visited 18 April 2019.
121 Ibid.
122 Christophe, supra note 28; also refer to Ambedkar, supra note 108.
123 M.V. Nadkarni, ‘Is Caste System Intrinsic to Hinduism? Demolishing a Myth’, 38 epw
(2003) p. 4783. For a critique on Nadkarni’s claim see, generally, G. Omvedt, ‘Caste System
and Hinduism’, 39 epw (2004) p. 1179.
124 Srinivas made this observation with regard to the impact of westernisation on Hinduism.
He said that unlike Christianity and Islam, Hinduism is not “better equipped to withstand
westernization because Hinduism lacks all organization excluding the caste system”.
Srinivas, supra note 82, p. 495.
125 T.K. Oommen, ‘Scheduled Castes, Scheduled Tribes, and the Nation: Situating G. S. Ghur-
ye’, 60 Sociological Bulletin (2011) pp. 228, 232.
126 Ibid., p. 233.

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secular and religious aspects of the caste system are complementary to each
other and difficult to determine which supersedes the other, any proposal to
annihilate caste must attack both the aspects with equal vigour.
One cannot underestimate the impact of the reconceptualisation of caste
as dwd without which the world community would have taken a long time to
comprehend caste discrimination. However, although the reconceptualisation
of caste as dwd is convincing in many (secular) aspects, it is also compro-
mising an essential (religious) aspect. Against this background, the following
questions are asked: why should caste discrimination be addressed only under
a broader category which fails to capture its intricacies completely? Shouldn’t
there be a Convention specific to caste discrimination?
4.4 Why the Indigenous Peoples Framework Is Not Appropriate to

Address Caste-based Discrimination?
Landlessness is a significant problem for Dalits, which makes them more vul-
nerable to caste discrimination. There is no explicit reference to the right to
land in international law except under the Indigenous Peoples framework.127
This might induce some to advocate addressing caste discrimination within
this framework. They might justify their approach by claiming that Scheduled
Tribes, the indigenous people of India, are also vulnerable to caste discrimina-
tion, or that Dalits are Indigenous Peoples. These claims are not unimaginable,
but India will never accept them. Also, there is a possibility that every caste in
India will come up with its own story to claim indigenous status. It should be
emphasised here that “self-identification” is a “fundamental criterion” to assess
indigenous membership.128
cerd identified minority groups, indigenous peoples, etc., as more vulnera-
ble to racial discrimination thereby falling under the scope of icerd.129 Hence,
caste discrimination will still be regarded as racial discrimination even if it is
addressed within the minority rights or Indigenous Peoples rights framework.
It is worth recalling that in the 1990s Dalit activists, as discussed in section 3,
approached the UN Sub-Commission, UN Working Group on Minorities, UN
Working Group on Indigenous Populations, etc. Finally, it was cerd and the
UN Sub-Commission that played an important role in internationalising caste
as racial discrimination under the guise of dwd. Now, the recent 2016 Report
127 E. Wickeri and A. Kalhan, ‘Land Rights Issues in International Human Rights Law’, 4 Ma-
laysian Journal of Human Rights (2010) p. 16. Draft Principles on the Elimination of dwd
also recognises the right to land. Supra note 94.
128 Thornberry, supra note 66, p. 24.
129 D. Shirane, icerd and cerd: A Guide for Civil Society Actors (imadr, Geneva, 2011), p. 2.

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824 Bhimraj M
has paved the way to address caste discrimination within the minority rights
framework. Should the Indigenous Peoples framework also be utilised to ad-
dress caste discrimination?
Although Thornberry acknowledges that “complementarity of approach is
a positive value in human rights strategies”, he seems to view the Indigenous
People’s strategy to address caste discrimination as complicating the issue.130
More importantly, he observed that Indigenous Peoples argue for the reten-
tion of their customs in contrast to caste groups who want it to be repealed
as it is a source of oppression.131 Dalit activists must bear this in mind and be
cautious in adopting the Indigenous People’s strategy. Dalits are not a homog-
enous group. There are many sub-castes following different customs which
might surely discriminate against other sub-castes. All these sub-castes can be
regarded as a single group in terms of discrimination they face from the caste
Hindus. It is based on such suffering that Ambedkar justified the minority sta-
tus of Dalits and his reconceptualisation of history further strengthened his
minority strategy as discussed above.
5 Conclusion
This article deals with the issues related to the internationalisation of caste
as descent-based discrimination. The following are the major conclusions ar-
rived at. First, the domestic mechanisms have failed to mitigate against the
atrocities against Dalits, which justifies the need to utilise international law
mechanisms. Secondly, even before his letter to DuBois, Ambedkar had the
intention of utilising international mechanisms. Thirdly, the broader category
of dwd dilutes the religious aspect of the caste system which might induce
one to question its potential in eliminating caste discrimination. Fourthly, the
2016 Report which paved the way to addressing caste discrimination within
the minority rights framework does not revive Ambedkar’s strategy as it does
not emphasise the Dalits as a group distinct from caste Hindus. Fifthly, the
Indigenous Peoples’ framework may not be appropriate to address case dis-
crimination as it preserves custom, which in itself is a source of discrimination
for caste-affected groups.
Hence, it is suggested that although caste discrimination is addressed as
dwd and now can also be addressed within the minority framework after the
2016 Report, the Dalit activists should be aware of its shortcomings, i.e. dilution
130 Ibid., p. 18.

131 Ibid., p. 24.

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of the religious aspect of the caste system. Annihilation of caste is impossible

without attacking the religious aspect. The Dalit activists should advocate a
Convention specific to caste discrimination which attacks both religious and
secular aspects of the caste system, utilising available frameworks in parallel.
As such a thing will take a long time to achieve it is essential at least to high-
light the religious aspect within the available frameworks thereby maintaining
caste as a unique form of dwd, among others.

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international journal on minority and group

rights 27 (2020) 796-825

The ‘Caste’ as ‘Discrimination Based on Work

The difficulty in categorising caste discrimination into standard categories of human

caste-based discrimination – discrimination based on work and descent (dwd) –

1 This article is a part of my llm dissertation, ‘Caste-Based Discrimination and International

© koninklijke brill nv, leiden, 2019 | doi:10.1163/15718115-02704005

international journal on minority and group rights 27 (2020) 796-825

r­ eport on caste-based discrimination”.5 Although the UN human rights bodies,

international journal on minority and group rights 27 (2020) 796-825

2 Failure of the Government Machinery

The Indian Constitution guarantees equality, abolishes untouchability, prohib-

2.1 Recent Incidents

7 Constitution of India 1950, Art. 46.

international journal on minority and group rights 27 (2020) 796-825

international journal on minority and group rights 27 (2020) 796-825

16 Anand Teltumbde, ‘Judicial Atrocity?’, 53:15 epw (2018) p. 14.

international journal on minority and group rights 27 (2020) 796-825

2.2 Conspiracy of Dalit Officials

2.3 Beyond Domestic Mechanisms

3 Internationalisation of Caste-based Discrimination

Mehta says that although Ambedkar remained a key symbol, transnational

international journal on minority and group rights 27 (2020) 796-825

anti-caste movements by the following three characteristics.29 First, it tran-

3.1 Ambedkar and Internationalisation

international journal on minority and group rights 27 (2020) 796-825

international journal on minority and group rights 27 (2020) 796-825

against the background of the literal nonexistence of literature on the sub-

3.2 Transnational Dalit Activism

41 As Burra rightly pointed out, “twail scholarship, essentially focusing on anti-colonial

international journal on minority and group rights 27 (2020) 796-825

international journal on minority and group rights 27 (2020) 796-825

caste discrimination is a form of racial discrimination in 1996 was a milestone

3.3 The 2001 Durban Episode

53 Mehta, supra note 29, p. 82.

international journal on minority and group rights 27 (2020) 796-825

3.3.1 India’s Opposition

convening of a world conference against racism, racial discrimination, xenophobia and

international journal on minority and group rights 27 (2020) 796-825

international journal on minority and group rights 27 (2020) 796-825

portray Gandhi as a common enemy to both blacks and untouchables, thereby

international journal on minority and group rights 27 (2020) 796-825

National Human Rights Commissions were consulted by the government be-

international journal on minority and group rights 27 (2020) 796-825

4 Caste’ as Descent-based Discrimination: Convincing or

Both the Charter-based80 and Treaty-based UN human rights bodies have

international journal on minority and group rights 27 (2020) 796-825

4.1 UN Sub-commission’s Working Papers on dwd

international journal on minority and group rights 27 (2020) 796-825

international journal on minority and group rights 27 (2020) 796-825

any distinction, exclusion, restriction or unfavorable treatment based on

In drafting the revised Principles and Guidelines, the Special Rapporteurs

90 unchr (Sub-Commission), ‘Preliminary report by Yozo Yokota and Chin-Sung Chung on

international journal on minority and group rights 27 (2020) 796-825

using caste as a surname,93 and multiple discrimination faced by women. It

4.1.1 Draft UN Principles and Guidelines for the Effective Elimination

international journal on minority and group rights 27 (2020) 796-825

­ reference based on inherited status such as caste, including present or ances-

4.2 The 2016 Report of the Special Rapporteur on Minority Issues

96 “[P]articular mention of terms such as ‘descent’, ‘work and descent’, or ‘discrimination’, is

international journal on minority and group rights 27 (2020) 796-825

it was subsequently emphasised that the caste-affected groups, although they

4.2.1 Dalits as Minority – Ambedkar’s Strategy

r eport on caste-based discrimination”.5 Although the UN human rights bodies,

reference based on inherited status such as caste, including present or ances-

d enouncement of ‘minority strategy’ but as a logical progression as the latter is

caste discrimination as a particular form of dwd120 within the UN and outside