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Annapurna Waughray

Abstract

India's Dalits (formerly known as Untouchables) number around 167 million or one-sixth of India's population. Despite constitutional and legislative prohibitions of Untouchability and discrimination on grounds of caste they continue to suffer caste-based discrimination and violence. Internationally, caste discrimination has been affirmed since 1996 by the UN committee on the Elimination of Racial Discrimination as a form of racial discrimination prohibited by the Inter national Convention for the Elimination of all Forms of Racial Discrimination, and since 2000 as a form of discrimination prohibited by international human rights law. India's Dalits have also pursued minority rights and indigenous peoples' approaches before international forums. Yet the Dalits do not readily meet the internationally-agreed criteria for minorities or for indigenous peoples, while in India they are not classified legally as a minority, enjoying a constitutional status and constitutional protections in the form of affirmative action provisions distinct from those groups classified as minorities. This article is concerned with the characterisation of the Dalits in international and Indian law. In particular it focuses on India's provisions on Dalits and minorities respectively, examining the origins and limitations of the Scheduled Caste category (the constitutional term for the Dalits) and the relationship between Scheduled Caste status and religion. The article addresses arguments for the extension of Scheduled Caste status to Muslim and Christian Dalits (currently excluded from the constitutional category on grounds of religion) and concludes by endorsing calls for re-examination of the domestic legal categories encompassing victims of caste discrimination and of the legal strategies for the elimination of such discrimination, while arguing that internationally caste discrimination might be more effectively addressed by the conceptualisation of caste as a sui generis ground of discrimination as in India.