UN CERD and India: Caste, Tribal Rights, Minority Protection and the Crisis of Substantive Equality

 

UN CERD and India: Caste, Tribal Rights, Minority Protection and the Crisis of Substantive Equality

SR Darapuri I.P.S.(Retd)

Introduction

India's Constitution established a powerful framework of equality, liberty, social justice and protection against discrimination. It abolished untouchability, provided affirmative action for Scheduled Castes (SCs) and Scheduled Tribes (STs), guaranteed equality before law, and created institutional safeguards for historically oppressed communities. Yet the persistence of caste discrimination, tribal dispossession, minority insecurity and unequal access to public institutions demonstrates that constitutional guarantees do not automatically produce substantive equality.

The recent observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD), following its examination of India's combined twentieth and twenty-first periodic reports in 2026 first after 2007, bring these questions into an international human-rights framework. The Committee examined not only conventional forms of racial discrimination but also discrimination based on descent, caste, ethnicity and other forms of inherited or group-based status. Its observations cover Dalits, Adivasis and other Indigenous and Tribal peoples, religious and ethnic minorities, migrants and asylum seekers, policing, citizenship, land rights and institutional representation.

The significance of the CERD review therefore lies less in any single allegation than in the interconnected picture it presents: formal equality may coexist with persistent structural inequality. The central issue is whether India's constitutional commitment to equality has been translated into effective equality in social, economic, political and institutional life.

Caste and the International Human-Rights Framework

One of the most important aspects of the CERD observations is the Committee's treatment of caste discrimination within the concept of discrimination based on "descent" under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

This position has particular significance in the Indian context. Caste is not simply an individual prejudice or an isolated social practice. It has historically organised social status, occupation, residence, marriage, access to resources and political power. The Constitution recognised the depth of this problem by abolishing untouchability under Article 17 and establishing affirmative-action provisions for historically disadvantaged communities.

The Indian state has also enacted specific legislation, including the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and laws prohibiting manual scavenging and bonded labour.

CERD acknowledged these constitutional and legislative measures while expressing concern about their implementation. The Committee's observations therefore point toward an important distinction between the existence of protective law and the effectiveness of its enforcement.

This distinction is central to understanding contemporary caste inequality. A legal prohibition may establish equality in principle, while social institutions, economic structures and administrative practices continue to reproduce inequality in practice.

Dalit Exclusion and the Persistence of Untouchability

The Committee expressed concern regarding continuing forms of exclusion affecting Dalits. These include segregation, unequal access to housing and basic services, discrimination in education, caste-based violence and restrictions affecting social and religious participation.

The persistence of such practices illustrates the difference between the constitutional abolition of untouchability and the social abolition of caste hierarchy.

Article 17 represents one of the strongest constitutional statements against caste oppression. Yet the existence of a constitutional prohibition does not by itself eliminate the social structures through which caste is reproduced. Segregated settlements, unequal access to water and sanitation, discrimination in schools, caste-based occupational practices and violence against those challenging traditional caste boundaries can continue even under a formally egalitarian legal order.

The CERD observations consequently raise the question of whether India's anti-discrimination framework should move beyond prohibition of particular acts toward a more comprehensive approach addressing structural and institutional discrimination.

Manual Scavenging: Caste and the Organisation of Labour

The persistence of manual scavenging represents one of the clearest examples of the relationship between caste and economic inequality.

India has enacted legislation prohibiting manual scavenging and requiring rehabilitation of affected workers. Yet the continued association of sanitation work involving hazardous human waste with historically marginalised communities demonstrates the difficulty of eliminating caste-based occupational structures.

From an Ambedkarite perspective, this problem cannot be reduced to poverty. Caste historically assigned occupations according to inherited social status. Consequently, emancipation requires not merely increasing income but dismantling the social mechanisms that reproduce hereditary occupational inequality.

CERD's concerns regarding manual scavenging, bonded labour and enforcement therefore have implications beyond labour regulation. They raise the larger question of whether economic development can be considered inclusive when particular communities remain disproportionately concentrated in degrading and hazardous occupations.

Tribal and Indigenous Rights

The Committee also raised concerns concerning Indigenous and Tribal peoples, including land alienation, displacement and development projects affecting their communities.

For many Adivasi communities, land is simultaneously an economic resource, a source of cultural identity and the foundation of community life. Displacement therefore has consequences extending far beyond the loss of individual property.

India possesses important constitutional and statutory protections for tribal communities, including the Fifth and Sixth Schedules, the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), and the Forest Rights Act, 2006.

The Forest Rights Act in particular recognises certain individual and community forest rights and seeks to correct historical injustices against forest-dwelling communities.

CERD's observations underline the importance of implementing these laws effectively, particularly where infrastructure, mining, conservation, tourism or other development projects affect tribal land and resources.

The question is therefore not simply whether development should occur, but how development decisions are made, who participates in them, who bears their costs and who receives their benefits.

Development, Displacement and Consent

The Committee's concerns regarding displacement demonstrate the tension between economic development and social justice.

Large infrastructure projects, extractive industries, conservation programmes and strategic projects can produce significant public benefits. At the same time, they can impose disproportionate costs on communities with limited political and economic power.

For Indigenous and Tribal communities, meaningful consultation and participation are therefore critical. Where communities are displaced without adequate consultation, rehabilitation or participation in decision-making, development can reproduce historical patterns of marginalisation.

CERD's recommendations concerning free, prior and informed consent reflect an international human-rights principle that communities should not simply be treated as passive recipients of development decisions.

This principle is particularly relevant in areas governed by PESA and the Forest Rights Act, where the Gram Sabha has an important statutory role.

Religious Minorities and Intersectional Discrimination

Another important dimension of the CERD observations concerns religious minorities, particularly Muslims and Christians, as well as members of Scheduled Castes and Tribes belonging to religious minorities.

Discrimination can operate through more than one identity simultaneously. A person may experience disadvantage because of caste, religion, gender, ethnicity, tribal identity or economic status, with these forms of disadvantage interacting with each other.

This is commonly described as intersectional discrimination.

The Committee raised concerns regarding hate speech, hate crimes, violence and the protection of minority communities. It also considered questions concerning access to constitutional protections for members of historically disadvantaged communities belonging to different religious groups.

These issues demonstrate that equality policy cannot always be designed around a single category. Effective protection may require attention to the interaction between caste, religion, gender, class and ethnicity.

Policing, State Power and Human Rights

CERD also raised serious concerns regarding alleged excessive use of force, arbitrary detention, torture, ill-treatment, extrajudicial killings and other violations affecting vulnerable communities.

These concerns are particularly significant because the police represent the everyday face of state authority for many citizens.

The constitutional promise of equality depends substantially on whether police and other state agencies apply the law impartially. If vulnerable communities experience law enforcement differently from socially powerful groups, formal equality before law becomes weakened in practice.

The solution is not simply stronger policing. It requires lawful policing—policing subject to constitutional safeguards, judicial oversight, accountability mechanisms, professional standards and effective remedies for victims.

India's Supreme Court has developed significant safeguards concerning arrest, detention, custodial violence and police accountability. The challenge is ensuring that such safeguards operate consistently at the ground level.

Migrants, Refugees and Citizenship

CERD also examined concerns relating to Rohingya, Bengali-speaking Muslims, migrants and asylum seekers, including allegations of discriminatory identity checks, arbitrary detention and deportation.

The Committee recommended safeguards against discrimination and statelessness and highlighted the principle of non-refoulement, under which individuals should not be returned to places where they face serious risks to their fundamental rights.

The Committee also examined concerns surrounding citizenship processes in Assam, including the National Register of Citizens.

Citizenship is particularly important because exclusion from citizenship can affect access to political participation, public services, legal protection and social security. Consequently, citizenship procedures must incorporate due process and effective opportunities for individuals to challenge adverse decisions.

Representation and Institutional Equality

The CERD observations also draw attention to representation in public institutions.

India's reservation system has significantly altered representation in legislatures, educational institutions and public employment. Yet representation remains uneven across institutions and levels of authority.

The question is therefore not simply whether members of disadvantaged communities are present in institutions, but whether they have meaningful access to decision-making positions and institutional power.

This issue is particularly relevant to the judiciary, police, administration and other institutions exercising considerable public authority.

Institutional diversity does not automatically guarantee equality, but the absence of diversity can make historically marginalised communities more vulnerable to institutional exclusion.

From Formal Equality to Substantive Equality

The most important conceptual lesson emerging from the CERD observations is the distinction between formal equality and substantive equality.

Formal equality means that the law does not openly discriminate.

Substantive equality asks a deeper question: do historically disadvantaged communities actually enjoy comparable opportunities, resources, security and access to institutions?

For example, a school may formally admit children from every caste while Dalit students continue to experience discrimination within the school. A law may prohibit untouchability while caste segregation persists in villages. Tribal communities may possess legal rights to forests while administrative decisions continue to undermine those rights. Minorities may enjoy formal constitutional citizenship while experiencing discriminatory treatment in particular institutional contexts.

Substantive equality therefore requires more than equal treatment. It may require affirmative measures, institutional reform, redistribution, effective enforcement and mechanisms for participation.

An Ambedkarite Interpretation

The CERD observations resonate strongly with several central elements of Dr. B.R. Ambedkar's analysis of Indian society.

Ambedkar distinguished political democracy from social democracy. In his view, democracy could not survive merely through constitutional institutions if society remained structured by graded inequality.

His emphasis on liberty, equality and fraternity was therefore not merely philosophical. These principles represented the social conditions necessary for democratic citizenship.

Caste presented a particular challenge because it created a system of graded social inequality in which different groups occupied different positions in a hierarchy. Political equality could consequently coexist with profound social inequality.

The CERD observations, although formulated within the framework of international human rights rather than Ambedkarite political theory, raise a related problem: whether legal equality is sufficient when social structures continue to generate unequal outcomes.

From this perspective, the report's concerns regarding caste, tribal rights, minority protection, policing and representation can be understood as interconnected dimensions of the problem of substantive citizenship.

The Gap Between Law and Implementation

India possesses an extensive constitutional and legislative framework protecting disadvantaged communities. The challenge identified by CERD is substantially an implementation challenge.

This gap can arise from several factors:

1.     inadequate enforcement of protective legislation;

2.     weak accountability mechanisms;

3.     under-reporting of discrimination and violence;

4.     delays in investigation and prosecution;

5.     inadequate rehabilitation of victims;

6.     unequal access to legal assistance;

7.     administrative discrimination;

8.     inadequate institutional representation; and

9.     insufficient participation of affected communities in policymaking.

Consequently, the existence of progressive legislation should not be confused with its effective implementation.

A rights-based democracy requires not only good laws but also accessible institutions capable of enforcing those laws impartially.

India's Response and the Importance of Dialogue

The CERD observations should also be understood within the framework of India's sovereignty and its international treaty obligations.

The observations of a UN treaty body are not equivalent to a judgment of an Indian court. They constitute the Committee's assessment and recommendations under ICERD.

The Government of India has disputed aspects of the Committee's assessment and rejected some of the characterisations concerning human-rights violations. These differences should be acknowledged rather than obscured.

At the same time, international review can provide an additional mechanism through which governments, civil society organisations and affected communities examine the implementation of human-rights commitments.

The appropriate response to such scrutiny is therefore a substantive engagement with the evidence, rather than treating international observations either as unquestionable verdicts or as matters that can simply be dismissed.

Towards a More Inclusive Constitutional Democracy

The issues raised by CERD suggest several broad areas requiring continued attention.

First, anti-discrimination law needs effective implementation and accessible remedies.

Second, laws protecting Scheduled Castes and Scheduled Tribes must be enforced consistently.

Third, manual scavenging and caste-linked hazardous occupations require stronger prevention, rehabilitation and accountability.

Fourth, tribal land and forest rights require effective implementation, particularly in areas affected by development and conservation projects.

Fifth, policing must remain subject to constitutional limitations, independent investigation and effective accountability.

Sixth, minority rights require protection against discrimination and violence irrespective of political or social circumstances.

Seventh, citizenship procedures must incorporate due process and safeguards against statelessness.

Finally, representation of historically marginalised communities in institutions of public authority needs continued attention.

Conclusion

The 2026 CERD observations on India provide an important international assessment of persistent inequalities involving caste, tribal and Indigenous communities, religious minorities, migrants and other vulnerable groups. They acknowledge India's constitutional and legislative framework while drawing attention to gaps between legal guarantees and their implementation.

The central issue is therefore not whether India possesses equality provisions—it clearly does—but whether those provisions produce substantive equality in everyday life.

The persistence of caste discrimination, manual scavenging, tribal displacement, minority insecurity, institutional exclusion and allegations of discriminatory policing demonstrates that constitutional democracy requires continuous institutional work. Equality must be experienced not merely as a constitutional promise but as a social reality.

For an Ambedkarite understanding of democracy, this is fundamental. Political democracy cannot remain secure when social democracy is absent. Liberty without equality permits hierarchy; equality without fraternity cannot create social solidarity; and constitutional rights without effective institutions remain vulnerable.

The CERD review thus provides an opportunity for India to examine the distance between constitutional morality and social practice, legal equality and substantive equality, and democratic citizenship and lived citizenship. Its lasting significance will depend not simply on the Committee's observations but on the extent to which the underlying concerns are examined through evidence, public debate, institutional accountability and democratic reform.