COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF INDIA

The Committee on the Elimination of Racial Discrimination has considered the fifteenth to nineteenth periodic reports of India on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.

Introducing the report, Swashpawan Singh, Permanent Representative of India to the United Nations Office at Geneva, said that the Government of India was committed to combating and eliminating discrimination in all its forms and manifestations. The Constitution prohibited discrimination on many grounds, including race. It also pioneered affirmative action programmes to address discrimination.

Continuing with the introduction, Goolam E. Vahanvati, Solicitor General of India, noted that the Constitution of India aimed to secure to all citizens, among others, social, economic and political justice; equality of status and opportunity; and fraternity assuring the dignity of the individual and the unity of the nations. Social justice was a dynamic device to mitigate the sufferings of the poor, weak and disadvantaged and deprived sections of the society and to elevate them to a level enabling them to live a life in dignity. Social justice was not a simple or single idea, but a complex tool for social change to ameliorate the lot of the poor and achieve the greater good of the society at large.

Turning to the question of why India maintained that "caste" was not incorporated in the definition of discrimination set out in Article 1 of the Convention, Mr. Goolam said it was a well-accepted fact that the Indian caste system could not be said to be racial in origin. In addition, caste and race were mentioned separately as grounds of discrimination in the Constitution, so could not be equivalent. Furthermore, caste, being an institution unique to India, had not been in the contemplation of the participants to the deliberations on the Convention, and, there was nothing in the travaux préparatoires of the Convention to support the suggestion that descent had meant to include caste as an aspect of racial discrimination.

Also speaking on the report, Dipankar Gupta, Academician, presented the sociological reasons why caste and race could not be equated. There was no phenotypical resemblance between members of the same castes. Moreover, descent and caste were not the same, Mr. Gupta insisted. Descent meant genealogical demonstrable characteristics. In the caste order people came of multiple descents. In fact, in the caste system people had to marry outside their lineage within their caste.

In preliminary concluding observations, Linos Alexander Sicilianos, the Committee Expert who served as country Rapporteur for the report of India, thanked the delegation for their efforts to reply to certain questions. He did not wish to recur to their diverging legal positions. He simply maintained that when India had mentioned Article 1, paragraph 1, under special measures, during the travaux préparatoires, castes had been understood to be included therein. While the delegation had not provided much information on castes or tribal peoples, the Committee had reports from dozens and dozens of non-governmental organizations on the question of descent. They had a large amount of information representing millions of people. The Sub-Commission for the Promotion and Protection of Human Rights and other treaty bodies had also provided information, as did the Office of the United Nations High Commissioner for Refugees, India's own National Commission for Human Rights, and the Ministries of Scheduled Castes and Scheduled Tribes. Further information had come from India's National Police, the Ministry of Home Affairs, in particular on the Armed Forces, and other intergovernmental entities. The delegation would understand that, as independent Experts, the Committee members would take all of that information into consideration in analysing the situation in the country.

Other Committee Experts raised questions and asked for further information on a number of subjects. An Expert wondered how it was possible that no cases of racial discrimination had been raised before the National Commission for Human Rights. Many Experts expressed concern about discrimination against the Dalits, or untouchables, in a variety of areas, including the denial of their right to land and employment discrimination. One Expert was particularly concerned about disturbing reports received about offences against Dalit women, both in terms of content and the magnitude of the offences. Many Experts touched on the difficulty presented by India's rejection of the notion that caste discrimination was within the Committee's competence. In that connection, an Expert wondered by what logic India had extended its argument that caste discrimination was not covered by the Convention to the issue of discrimination against tribes or indigenous peoples, and no information on the subject had therefore been provided in the report.

The delegation of India also included other members of the Permanent Mission of India to the United Nations Office at Geneva, as well as representatives of the Ministry of Social Justice and Empowerment and the Ministry of External Affairs.

The Committee will present its written observations and recommendations on the fifteenth to nineteenth periodic reports of India, which were presented in one document, at the end of its session, which concludes on 9 March.

When the Committee reconvenes at 3 p.m. it is scheduled to take up the fourth to seventh periodic reports of the former Yugoslav Republic of Macedonia (CERD/C/MKD/7).

Report of India

The fifteenth to nineteenth periodic reports of India, submitted in one document (CERD/C/IND/19), says India has a tolerant society, where people of different faiths and persuasions have joined together in building the world’s largest democracy, and where universally recognized human rights and fundamental freedoms are guaranteed to all its citizens without discrimination. To further strengthen and safeguard the exercise of basic human rights of the vulnerable sections of Indian society, additional mechanisms have been put in place, including the National Commission for Women, the National Commission for Minorities, the National Commission for Scheduled Castes, the National Commission for Scheduled Tribes and a National Commission for Human Rights. These Commissions are charged with the responsibility of safeguarding the rights guaranteed to specified target groups under the Constitution, as well as under the various laws passed by the legislature. In investigating violations of these rights, suo motu or on complaint, these Commissions have the powers of civil courts to summon and examine witnesses and documents. Their reports have to be tabled in Parliament for discussion.

The Committee has asked the Government of India to submit information on a number of issues pertaining to Scheduled Castes and Scheduled Tribes. In this context, India reiterates its position that "caste" cannot be equated with "race" or covered under "descent" under Article 1 of the Convention. "Race" and "caste" are mentioned separately in the Indian Constitution as prohibited grounds of discrimination, therefore they cannot be considered to be interchangeable or synonymous. Information pertaining to Scheduled Castes and Scheduled Tribes or issues related to this group has therefore not been provided in the present report. The National Human Rights Commission, established in 1993, is the apex national institution to protect human rights and redress grievances pertaining to their violation. Established in accordance with Paris Principles, it has also awarded compensation to victims of violation of human rights in many cases. Through its unique complaint registration and tracking system, the Commission has handled more than 70,000 complaints in its 12 years of existence. However, no case of violation of human rights due to racial discrimination has come to light.

Presentation of Report

SWASHPAWAN SINGH, Permanent Representative of India to the United Nations Office at Geneva, introducing the report, said it was a comprehensive document designed to show how, in the world's largest democracy, the commitment to pluralism and respect for democracy had affected all segments of Indian society. The Constitution reflected the very essence of India's freedom struggle to create a multicultural, multilingual and multiethnic society. The commitment to pluralism and tolerance informed all aspects of the Indian Constitution, drawing on its own experience of assimilating many cultures and religions over millennia, as well as the major international human rights instruments such as the charter of the UN. The Government of India was committed to combating and eliminating discrimination in all its forms and manifestations. The Constitution prohibited discrimination on many grounds, including race. It also pioneered affirmative action programmes to address discrimination.

Briefly, Mr. Singh wished to recall that the Committee was familiar with India's position that caste-based discrimination was outside the scope of discrimination as defined in Article 1 of the Convention. That continued to be their position, given the sui generis position of caste in India. In any case there were numerous affirmative action plans that assured that disadvantaged castes were brought into the mainstream of Indian society and the delegation would try and reply to questions concerning caste that might be of interest to the Committee.

The report detailed the efforts being made to secure education for all, and especially for those most in need. The importance of the National Commission for Human Rights had grown since its inception in 1993, and individual States had also set up their own human rights commissions.

GOOLAM E. VAHANVATI, Solicitor General of India, continuing to present the report, noted that the Constitution aimed to secure to all citizens, among others, social, economic and political justice; equality of status and opportunity; and fraternity assuring the dignity of the individual and the unity of the nations. Social justice, equality and dignity of the person were the cornerstones of social democracy. Social justice was a dynamic device to mitigate the sufferings of the poor, weak and disadvantaged and deprived sections of the society and to elevate them to a level enabling them to live a life in dignity. Social justice was not a simple or single idea, but a complex tool for social change to ameliorate the lot of the poor and achieve the greater good of the society at large.

Article 14 of the Constitution of India enjoined the State not to deny to any person equality before the law or the equal protection of the laws. The two concepts were not the same. Equality before the law contemplated containing inequalities in income and eliminating inequalities in status, facilities and opportunities not only among individuals but also among groups of people, securing adequate means of livelihood to its citizens, promoting educational and economic interests of the weaker sections of the people, including in particular the Scheduled Castes and the Scheduled Tribes, and protecting them from social injustice and all forms of exploitation.

Article 15 of the Constitution, among other things, enabled special provisions to be made for women and children and allowed for protective discrimination to be extended to socially and educationally backward classes of citizens or Scheduled Castes or Scheduled Tribes. Article 16 provided for equal opportunity in terms of employment and appointment to any office under the State, and permitted the reservation of posts in favour of the backward classes. Article 17 abolished "untouchability" and its practice in any form was forbidden. It further provided that the enforcement of any disability arising out of untouchability was an offence punishable by law. Article 41 of the Constitution provided that the State should, within the limits of its economic capacity, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, sickness, old age and disablement and in other cases of undeserved want. In that connection, Mr. Goolam observed that the Indian Parliament had recently enacted the National Rural Employment Guarantee Act, 2005, the object of which was to give employment to at least one member of a family for 100 days in a year.

Turning to the question of why India maintained that "caste" was not incorporated in the definition of discrimination set out in Article 1 of the Convention, Mr. Goolam first drew attention to the Vienna Convention on the Law of Treaties, which held that the terms in a treaty would be given their ordinary meaning. There was no doubt about the ordinary meaning of the expression "racial discrimination". It was a well-accepted fact that the Indian caste system could not be said to be racial in origin. In addition, noting that caste and race were mentioned separately as grounds of discrimination in the Constitution, so could not be equivalent.

Furthermore, there was no doubt that one of the main reasons for the context of the adoption of the Convention was the practice of apartheid. Mr. Goolam submitted that caste, being an institution unique to India, had not been in the contemplation of the participants to the deliberations on the Convention. In addition, it was significant that, until 1996, it had never been contended that caste fell within the concept of racial discrimination in the Convention on the basis of "descent". Turning to the comments on the proposal for the inclusion of the word "descent" among the prohibited grounds for discrimination during the travaux préparatoires of the Convention, there was nothing to support the suggestion that "descent" had meant to include "caste" as an aspect of racial discrimination. The speeches in the UN General Assembly showed that the primary concern had been with regard to the difficulties experienced with the expression "national origin".

DIPANKAR GUPTA, Academician, presented the sociological reasons why caste and race could not be equated. The two terms had different provenances. Indeed, the terms race and caste were both social constructs; they were not scientific concepts. Both were sociological constructs and should be understood as such. There was no phenotypical resemblance between members of the same castes. In fact, the definition of a particular caste as wedgy nosed and bull-lipped, had not been a reference to physical characteristics, but if examined closely had other origins. For example, the word signifying "wedgy-nosed" really referred to those who spoke another language.

Furthermore, each caste equally discriminated against other castes, Mr. Gupta said. There was no caste that accepted the belief that they were made of base substances. All castes believed that they came from exalted origins. It was false to assume that the Brahmin caste was universally revered. In some areas of India purification rights were carried out after a Brahmin had entered someone's home.

Mr. Gupta said that caste beliefs were local manifestations and had to be understood locally. That was another distinction between caste and race. Caste had significance within a radius of 200 miles and no more.

Furthermore, descent and caste were not the same, Mr. Gupta insisted. Descent meant genealogical demonstrable characteristics. In the caste order people came of multiple descents. In fact, in the caste system people had to marry outside their lineage within their caste.

Oral Questions Raised by the Rapporteur and Experts

LINOS ALEXANDER SICILIANOS, the Committee Expert serving as Country Rapporteur for the report of India, said, regarding Article 1 of the Convention, he wished to clarify the Committee's view of the term "descent". He recalled that the Vienna Law of Treaties, which the delegation had cited, required that terms in a treaty had to be understood in their ordinary sense, but also had to be interpreted in their context. In this case, that context included the preamble to the Convention, the travaux préparatoires, and the intention of the parties framing the instrument.

During the travaux préparatoires, in a discussion on special measures, India had explicitly referred to the need to include all special measures to ensure progress of "castes enumerated". There were further references by India to the Scheduled Castes in those discussions. It appeared that India intended to include caste within the scope of the Convention, and to undertake such actions as were currently under way in the country to address caste-based discrimination. Mr. Sicilianos agreed that castes did not share racial characteristics. In fact, if descent meant only racial descent, the distinct foundation for descent as a basis of discrimination would be nullified. Just as race and caste had to be separately defined in the Indian Constitution, race and descent had to be separately enumerated in the Convention. Caste was not being identified with race or ethnic origin. In that connection, he wished to point out that the title of the Convention on the Elimination of all Forms of Racial Discrimination, only gave a partial idea of its scope.

Mr. Sicilianos welcomed the assertion by the delegation and in the report that they would nevertheless provide information on castes, despite their position. He also noted with appreciation that the Indian Constitution had abolished the caste system and prohibited discrimination on the basis of caste. In practice, however, caste-based discrimination persisted in India and had been widely documented by non-governmental organizations, and UN and other international mechanisms, such as the lynching of couples who married outside of their castes or their relatives; the occupation of manual scavenging, with severe repercussions for the Dalits; the persistence of the practice of untouchability, leading to the de facto segregation in schools, and other public places, as well as in access to water sources; and displacement of Dalits without compensation. There was also persistent discrimination against Dalits with regard to their political rights. Despite the affirmative action policies, for example to set aside seats for Dalits in representative bodies, that was often not carried out in reality. A report also documented how, in the context of the tsunami disaster, Dalits had been discriminated against in all phases. He wondered what the Government's plans were to implement the recommendations made in the National Human Rights Commission on atrocities against Scheduled Castes?

Mr. Sicilianos wished to recall that, at a 2006 Dalit international conference, the Prime Minister of India had affirmed that the Dalits had faced a unique and devastating form of discrimination in India, the only parallel for which was the practice of apartheid in South Africa. It was not just social discrimination, he had said, it was a blot against humanity. Those sentiments did not appear to jibe with the opinions expressed by the delegation today.

Turning to discrimination against Scheduled Tribes and indigenous peoples, Mr. Sicilianos noted that certain tribes had been identified as criminal by law. In addition, he was concerned about the rights granted to security forces of the Central Government in the Armed Forces (Special Powers) Act (1958), applicable through the entire northeast region primarily inhabited by indigenous peoples, including the powers to search and arrest suspects without a warrant and to use force against persons or property.

An important step towards protecting the rights of tribal people had been the setting up of the National Commission for Scheduled Tribes. However, according to information received, as of February 2007, that Commission had only eight offices to deal with 84 million people. In that regard, Mr. Sicilianos said he would appreciate information on funding and measures taken by the Commission.

Despite the presence of numerous Afghan and Myanmar refugees in the country, there was no comprehensive national legislation on refugees, Mr. Sicilianos observed. In the absence of a specific legal instrument, India dealt with refugees through its administrative machinery. The Committee would like to hear more information about how that was handled, in particular with regard to the refugees from Myanmar, who had reportedly encountered difficulties.

Other Committee Experts raised questions and asked for further information on a number of subjects. An Expert wondered how it was possible that no cases of racial discrimination had been raised before the National Commission for Human Rights. Many Experts expressed concern about discrimination against the Dalits, or untouchables, in a variety of areas, including the denial of their right to land and employment discrimination. One Expert was particularly concerned about disturbing reports received about offences against Dalit women, both in terms of content and the magnitude of the offences. Dramatic action was needed to cure that problem, and he wondered what the Government was doing to address it.

An Expert wondered by what logic India had extended its argument that caste discrimination was not covered by the Convention to the issue of tribes or indigenous peoples, which it also stated in the report were not covered by its mandate.

If India was truly committed to social cohesion, should it not wish to use all possible tools at its disposal, an Expert wondered. In that regard, would it not be better if India viewed the Convention as an opportunity rather than a threat?

Response by Delegation to Oral Questions

At the outset, Mr. Vahanvati underscored that there appeared to be a misconception that it was the delegation's position that there was no caste-based discrimination in India. That was clearly not the case. India was deeply conscious of and concerned about caste-based discrimination and was fully committed to tackle that at every level. They had explicit and elaborate provisions to address caste-based discrimination, including a full-fledged Ministry to look after action in that area. Their point was that the Government was addressing the issue, and that it was discussed under the appropriate multilateral human rights instruments – which did not include this Convention, which was specific to racial discrimination.

In that connection, Mr. Vahanvati was very glad that there had been a clear acknowledgement by the Committee that caste was not race, and that the country Rapporteur had accepted that the ordinary meaning of "race" did not include caste.

Continuing on the issue of the scope of the Convention, Mr. Vahanvati went over the travaux préparatoires once again, and pointed to the two sole instances when the word “caste” had been mentioned and emphasized that both the references were made by the Indian delegation. In particular, he insisted that those instances were not in the context of discussing the Convention's scope. Both the references were made during the debate on exceptions to the general rule prohibiting racial discrimination. The Indian delegate had specifically observed that "certain groups of people", viz. the Scheduled Castes, who had been discriminated against by the caste system, were of the same racial stock and ethnic origin as their fellow citizens. Further, to address their situation, special measures had been incorporated in the Indian Constitution.

On intent, Mr. Vahanvati said that, apart from India, it was very unlikely that any other country had been interested in the issue of caste. It was very clear that India had not wished to include caste within the category of descent. This was the settled position of the Government of India and had been unequivocally reiterated a number of times. The position of the Government had been consistent and there had been no change in their stance.

Regarding the Armed Forces (Special Provisions) Act, 1958, Mr. Vahanvati assured the Committee that, although India had had to combat terrorism for over two decades, their laws, including the special laws enacted in that context, had always had clear elements of administrative and judicial reviews, and implementing agencies had been made more and more aware of the need to ensure due protection of human rights. The constitutionality of the Armed Forces Act had been upheld in a 1998 Supreme Court decision. The Court had held that conferring certain limited special powers to the armed forces was valid, as the Act only enabled the civil authorities of the State to deal with a disturbed condition affecting the maintenance of public order in the disturbed area. The Act was not directed at any specific groups of people, but its provisions were applicable to all throughout the notified areas.

On the National Police Commission, Mr. Vahanvati noted that the Police Act dated back to the colonial era, and despite amendments over time, the issue of major and across-the-board reforms was now seriously engaging the Government.

In terms of acquisition of Indian nationality, under the Indian Citizenship Act of 1959, there was no automatic provision of nationality for someone marrying an Indian citizen. They had to apply for citizenship under the Act, Mr. Vahanvati said.

As far as inter-caste marriages were concerned, Mr. Vahanvati recalled that the Supreme Court had recently dealt with this issue and had given detailed guidelines and instructions to the authorities and the police to protect such couples.

In terms of access to justice, Mr. Vahanvati said that the use of Lok Adalats, or people's courts, were being promoted on every level and coordinated efforts had been made by the National Legal Services Authority, which not only provided free legal aid, but had also undertaken a national literacy mission to make the underprivileged aware of their legal rights. In recent years, for example, Dalit women's literacy had been improved by 114 per cent.

Referring to remarks made by the country Rapporteur, Mr. Vahanvati said that the Prime Minister's speech regarding apartheid had been quoted out of context. The Prime Minister had drawn attention to the abhorrent social issue of untouchability, and had drawn a parallel with apartheid in that context. The Prime Minister had not been dealing with racial discrimination, but social discrimination. That was clear in the rest of his speech. That in no way conflicted with the delegation's stated position, and certainly did not make it in any way untenable.

The Country Rapporteur and some other members had sought to bring new meaning to the scope of the Convention, and had claimed that it was the same as the title of the Durban Conference (against Racism, Racial Discrimination, Xenophobia and Related Intolerance). There had also been an attempt to give a totally new meaning and scope to the phrase "related intolerance". That had been, Mr. Vahanvati was afraid, misconceived. India was clear about the scope of the Convention, which was to combat racial discrimination. In addition, notwithstanding any attempts to stretch the English language, there was no way they would allow it to be said that India practised racial discrimination in any form.

Mr. Gupta, continuing to respond to questions, noted that as far as child labour was concerned, that was not a practice that was exclusive to any one caste. At the root of that problem was poverty.

Referring to the country Rapporteur's mention of a caste-based lynching, Mr. Gupta was not sure he had gotten his facts correct. People in the caste system were proud of who they were and their traditions and position in the country. Therefore if anyone broke caste rules, people got angry. The most sensational case, in which a couple was lynched for marrying against the wishes of their parents, had not involved an inter-caste marriage, but a couple that had married within their clan, against the caste rules.

In terms of political participation, Mr. Gupta noted that 14 per cent of the members of Parliament were members of the Scheduled Castes.

The Committee had asked whether it was possible to escape one's caste. That was the wrong way to ask the question, Mr. Gupta said, as if caste were race. There was no question of "passing" as another caste. Caste members did not want to escape their caste, they wished to raise their caste identity in the eyes of others.

Mr. Puri, speaking on the issue of making a declaration under Article 14, which would allow the Committee to consider individual complaints from individuals or groups of individuals, referred to India's extensive, independent legal structure in place to consider individual complaints. The Constitution provided for direct access by individuals to the Supreme Court on any complaint of a human rights violation. In addition, there were several other complaints mechanisms in place, including the State human rights commissions and the National Commission for Human Rights. There thus existed an effective national framework to address individual violations.

With respect to provisions for refugees, Mr. Puri said it was India's position that the 1951 Refugee Convention and its Protocol had been elaborated to deal with the situation of individual refugees and not situations of mass influx, such as India experienced. It also did not distinguish between refugees and economic migrants, or take into proper consideration the rights of receiving States. In spite of those reservations, India had been collaborating closely with the UN Refugee Agency (UNHCR), practising non-refoulement, and refugees in India enjoyed full protection and equality before the law. Regarding refugees from Myanmar, all those cases were being dealt with by the UNHCR Office in India.

On the situation of Dalit women, Mr. Puri recalled that the Convention did not cover that situation. Women's rights were specifically addressed by the Convention on the Elimination of all Forms of Discrimination against Women, and India had presented its report to the relevant Committee only a few weeks ago in New York. That report had provided detailed information on women from disadvantaged sectors of Indian society, and was accessible on the CEDAW website.

Responding to a comment from the Committee expressing surprise on the absence of cases relating to racial discrimination in India, Mr. Puri reiterated that the issue of racial discrimination did not have any place in India's national consciousness. Attempts to gather data on this issue pointed to the total absence of racial discrimination, as the local authorities were unclear as to what information was being sought.

Turning to the Tsunami, Mr. Puri said India had lost more than 10,000 people and hundreds of thousands had been rendered homeless and had had their livelihoods shattered. Responding to that massive humanitarian disaster, India had used all of its capabilities. A massive rehabilitation programme had been undertaken, directed at all those affected, and the issue of any group being singled out or excluded could not have been the case.

On the issue of tribal or indigenous peoples, Mr. Puri noted that indigenous or tribal peoples had been defined only twice in international law: in the 1957 and 1989 International Law Conventions. According to those Conventions, indigenous peoples were defined as the peoples in independent countries who were regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belonged, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retained some or all of their own social, economic, cultural and political institutions. Thus the entire population of India at the time of Independence was indigenous. India had made its position on that clear when it had accepted the Declaration on the Rights of Indigenous Peoples. For that reason the issue of tribal peoples was not relevant to the consideration of this Committee.

In terms of "criminal tribes", Mr. Puri noted that the Criminal Tribes Act had been established by the Colonial Government, and had since been withdrawn.

Mr. Puri underscored the elements of independence and expertise that should guide the work of human rights treaty bodies. He raised with the Committee the question of whether it should consider adopting a procedure to regulate and validate the information received from various sources so as to ensure that it had access to objective, credible and unbiased information.

Further Oral Questions Posed by Experts

The Chairperson recalled that the issue of caste was not particular to India. Following a debate in which numerous countries had participated, the Committee had elaborated its General Recommendation No. 29, concerning discrimination based on descent, including the issue of castes.

An Expert asked to what caste a child of mixed caste parents belonged.

Replies by the Delegation

The delegation said that a child born of mixed caste parentage had no caste, and that there were many such cases in India.

Further Remarks by Experts

An Expert said he did not accept the delegation's observation that because all castes discriminated against each other, there was thus no discrimination. What they should be asking was, was there one group that was particularly discriminated against and disadvantaged as a result.

The Chairperson wondered what specific provisions had been made consonant with the recent Supreme Court decision to protect those who married a member of another caste.

An Expert asked for more details on the scheduled tribes, in particular who was included in that group.

Response by Delegation

SUNDEEP KHANNA, Additional Secretary at the Ministry of Social Justice and Empowerment of India, pointed out that not all semi-nomadic or nomadic tribes were members of the Scheduled Tribes. The Criminal Tribes were those that had been listed by the authorities during colonial times because of their purported criminal tendencies, and severe restrictions had been placed on their movement. After independence, the Indian Government had abolished those laws and affirmative action plans wee put in place at the level of State Governments to address their problems. Further, the census also did not gather information on these groups. It was further pointed out that gradually some of these groups were listed as Scheduled castes, Scheduled Tribes or Other Backward Classes. In March 2005, the Government of India had set up a Commission to suggest specific interventions for their economic empowerment. The report was expected in February 2008. Nonetheless, many individuals belonging to these groups had risen to high ranks in Government service.

Further, the delegation gave details of administrative policies, including the framework for defining Scheduled Tribes, Parliamentary and Legislative Committees and the objectives of new schemes. It was also noted that non-governmental organizations were closely associated with the implementation of the schemes of the Ministries of Social Justice and Tribal Affairs.

Mr. Gupta said in a proof that caste and descent were not the same, a child of "X" caste who married someone of "Y" caste, was a member of no caste. However, they continued to belong to both lines of descent.

Preliminary Remarks

LINOS ALEXANDER SICILIANOS, the Committee Expert who served as country Rapporteur for the report of India, thanked the delegation for their efforts to reply to certain questions. He did not wish to recur to their diverging legal positions. He simply maintained that when India had mentioned Article 1, paragraph 1, under special measures, during the travaux préparatoires, that castes had been understood to be included therein.

Mr. Sicilianos recalled that the Committee had reports from dozens and dozens of non-governmental organizations on the question of descent. They had a large amount of information representing millions of people. The Sub-Commission for the Promotion and Protection of Human Rights and other treaty bodies had also provided information, as did the Office of the United Nations High Commissioner for Refugees, India's own National Commission for Human Rights, and the Ministries of Scheduled Castes and Scheduled Tribes. Further information had come from India's National Police, the Ministry of Home Affairs, in particular on the Armed Forces, and other intergovernmental entities. The delegation would understand that, as independent Experts, the Committee members would take all of that information into consideration in analysing the situation in the country.

It was clear that India was well aware of the problems concerning the untouchables, as they had a ministry to deal with that, as well as a ministry for scheduled tribes, Mr. Sicilianos observed. The Committee wished to have had more information about those issues, but they had heard some.

With regard to refugees, Mr. Sicilianos had not quite understood the legal regulations in India regarding the 1951 Convention. Even if they did not ratify that Convention, however, he would urge them to create a legal framework and special rules for refugees.


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