A week before the whole world was about to celebrate the International Women’s Day, ironically with many people and national leaders in India even posting about it on social media, a court in Uttar Pradesh, released the three men accused of the brutal gang rape and murder of a 19-year-old Dalit girl in Hathras in September, 2020.^[i] At least ten Dalit women are subjected to rape every single day in India as per the National Crime Record Bureau, with the incidences of rape of Dalit women increasing at an alarming rate of almost One hundred fifty nine per cent, between the years 2009 and 2019.^[ii] Even though the practice of ‘Untouchability’ was ‘abolished’ in India in 1950 and Article 17 of the Indian Constitution was introduced concretizing it, caste-based discrimination, compounded by gender-based discrimination, continues to prevail in India.

Although the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)^[iii] when read with the General Recommendation XXIX on Article 1^[iv] of the convention, describes ‘caste’ as something that falls under the ambit of ‘descent’, India has consistently vehemently resisted this classification. This Article aims to explain how equating caste with descent is oversimplification of an extremely complex social system which governs a group of people’s access to resources, education, their profession and social standing. It also discusses how India’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is a hollow or superficial gesture, is of an ‘epiphenomenal’^[v] nature and not a genuine reform to uphold the CEDAW principles. Most of the laws enacted to eradicate gender discrimination lack depth and are merely there to maximize votes by pleasing certain demographics and are conveniently amended or struck down as the government deems fit to please those demographics.^[vi] Moreover, CEDAW alone proves to be insufficient to address the intersection of gender and caste-based discrimination, which is so prevalent in India, that it must not be overlooked. This Article argues that this intersection must be incorporated under the ICERD itself, for more effective policy making.

ICERD and The Problem with Equating Caste with Descent

Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)^[vii] acknowledges descent-based discrimination and General Recommendation XXIX on Article 1, Paragraph 1^[viii] of the Convention clarifies that caste and other analogous systems of inherited status, are covered under ‘descent’. The discussion revolving around caste is not just limited to India but extends to several other jurisdictions. Though Nepal accepts that its caste system constitutes racial discrimination, in its reports to the CERD, but India and Japan have directly or indirectly, consistently rejected this notion arguing that CERD is not right in its interpretation.^[ix]

Many academicians assert that casteism is worse than racism, coining the phrase ‘caste is race plus’ as casteism is “inflicted by birth, sanctified by religion and glorified by tradition”.^[x] Unlike descent which usually stems from a common ancestor or belonging to a particular group, caste is a social structure that dictates one’s position in the society at large from birth, and affects every aspect of life including access to resources, education, their work and profession and social standing and it is all allegedly sanctioned by one’s religion via texts such as Manusmriti. Dalits have to endure modern forms of slavery in the form of hazardous jobs like manual scavenging and sacrifice their own health and lives just so other people can live in comfort.

Equating such a complex social structure with descent or race has several implications. For instance, the Supreme Court in Safai Karamchari Andolan and Ors v India and Ors^[xi], drew a parallel between race and caste and in doing so, it oversimplified the complexities of caste which are deeply rooted in historical, religious and cultural contexts. It diminished the sufferings and challenges, that are unique to Dalits and other marginalised groups, exacerbating their oppression.^[xii] And on top of that, the apex court not recognizing the stance of the country, undermines not just India’s footing in the international spheres but also all the efforts by NGOs and other organizations to tackle caste-based injustices, and the effectiveness of the existing legal frameworks to protect them.

Pinto went a step further to draw a contrast between caste and descent and stated that while Africans and Palestinians (Descent) seek reparations for the colonial injustices, Dalits are even today subjected to ongoing exploitation by those within the caste hierarchy whom he refers to as “caste masters”. Equating them completely disregards the injustices and inequalities that are embedded in the social structure of India.^[xiii]

CEDAW: Superficial Attempts or Genuine Reform?

India ratified CEDAW in the year 1993 and though there already existed several legal provisions in Constitution of India to combat gender inequality, there were still gaps that were thought to be bridged by introducing new laws in conformity with CEDAW. For instance Article 2(a) of the convention talks about embodying the principle of equality of men and women in the constitution and all other appropriate legislations.^[xiv] The companies Act, 2013 under Section 149 mandates that there has to be at least one-woman director, given certain conditions, which is in conformity with Article 2(a) of the convention and seems like a revolutionary change.^[xv] Though seemingly progressive, one can argue that it is just token representation of women, a superficial reform and not a systematic change or genuine compliance with CEDAW. Mandating a single female director does not address other barriers like workplace discrimination making it a tokenistic approach merely for optics.

Vasudevan goes a step further and asserts that not just India’s CEDAW compliance is superficial but also of an ‘epiphenomenal’ nature and politically motivated.^[xvi] She relies on Anthony Downs’ theory of democracy and suggests that all that governments act on is based on vote maximization and not out of moral conviction like in the case of Roop Kanwar’s Sati and the Shah Bano case. Despite India’s ratification of CEDAW, the feeble punishment for abetment of Sati was nothing but a superficial attempt at addressing gender-based violence. The actions of the government were symbolic at best and aimed at appeasing both the international community and certain religious groups, all at the same time making the so-called ratification hollow and epiphenomenal. Rajiv Gandhi passing a law to overturn the Supreme Court’s decision of providing Shah Bano an alimony which was already marginal, shows how gender rights can any day easily be sacrificed just to appease certain religious groups and vote maximization thereon.^[xvii]

Gendered Caste-Based Discrimination

If CEDAW can barely even address gender issues in India, it can never be sufficient to address something as complex as an intersection of Gender and Caste-based discrimination. The Wire recently covered a story on the Mallah Fisherwomen in Bihar, who have been historically marginalized and have been subjected to modern forms of slavery, including forced labor, debt bondage and sex slavery.^[xviii] This Article is not an attempt at undermining the experiences of other women but an attempt at explaining the unique experiences and challenges faced by Dalit women.

The Mallah women in the Madhubani region of Bihar had to endure not only caste-based discrimination but also gender-based discrimination from Brahmins, Yadavs and men of their own caste including their husband, all at the same time. They were, owing to their caste, forced to be trapped in a vicious circle of debt bondage and subjected to work in the fields of Brahmins for minimal wages. At the same time, the Brahmins would physically and sexually abuse them trapping them in a cycle of sexual slavery. Dalit men would impose even greater patriarchal restrictions on them confining them to their homes, not letting them wear a blouse under their saree or slippers or even letting them utter their husbands’ names.^[xix] This intersectionality makes their experiences distinct from what non-Dalit women and Dalit men otherwise face owing to their gender and caste.

The women somehow compelled the Bihar government and an amendment to their Cooperative Societies Act^[xx] came into place which allowed women cooperatives to bid for fishing rights.^[xxi] This appeared to be progressive but in practice, it was superficial. While the others were given more productive ponds, the Mallah women were allocated only dead and overgrown ponds, that they had to restore those unusable ponds into functioning resources, which took 5 years.^[xxii] This attempt by the Bihar government was nothing but symbolic and it was a clear case of systematic neglect, as if the government was trying to mock the women with their so-called reform, which again brings us to the point that even with the ratification of CEDAW in place, the laws made, allegedly, in conformity with the Convention, are epiphenomenal^[xxiii].

In 2021, the Supreme Court hinted at a complete shift when faced with the case of a blind Dalit woman who had been raped. In Patan Jamal Vali v. State of A.P.^[xxiv], Justice D.Y. Chandrachud explicitly emphasized the need to use an intersectional lens for evaluating the unique experience of a bind Scheduled Caste Woman. The ruling called for a ‘cumulative effect’^[xxv] approach which implies examination of the multiple sources of oppression to reach that unique experience. The court also acknowledged that the victim’s oppression was not a result of her gender, caste and disability alone but that it stems from the intersecting nature of these identities which place her at a “uniquely disadvantageous position”.^[xxvi] It further noted that gender discrimination cannot be separated and understood in isolation from other socio-economic and political factors. But this ruling was never solidified in the form of a precedent a legislation or a policy, making it a superficial reform.

These hollow reforms exacerbate the struggles faced by Dalit women and reinforce a culture of silence and oppression. The existing framework of CEDAW and how the judiciary in India approaches intersectionality, is not sufficient to address this dual marginalization and the right way would be to recognize ‘gendered caste-based discrimination’ under the ambit of the ICERD and also under the ambit of The Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989.

Conclusion

Caste-based discrimination cannot be equated with race or descent as doing so disregards the unique struggles and challenges faced by Dalits. ICERD needs to incorporate ‘Caste’ as a separate ground instead of considering it under the ambit of descent. Although India ratified CEDAW, it has largely failed to bring about actual reforms and has instead resorted to symbolic legal provisions that lack substantive impact. Moreover, the government has for years, been more focused on appeasing certain demographics to maximize votes rather than genuinely committing to CEDAW and implementing meaningful reforms. CEDAW thus, sure is not enough to address the intersection of Gender and Caste-based Discrimination. Gendered caste-based discrimination uniquely affects Dalit women, and they experience exclusion, exploitation and violence owing to their caste identity, with their gender further exacerbating the barriers they face even further, making the need for its recognition under the ICERD even more urgent. The judicial recognition of intersectionality in the case of Patan Jamal Vali^[xxvii], was a critical breakthrough but it needs to be concretized with legislative and policy reforms. It should be adopted as a binding precedent so that this deep-seated systematic failure of the legal invisibility of Dalit women is addressed effectively.

Endnotes

[i] Kavita Chowdhury, ‘The grim reality of sexual violence for India’s Dalit Women’ (The Diplomat 2023)  https://thediplomat.com/2023/03/the-grim-reality-of-sexual-violence-for-indias-dalit-women/ accessed 23 July 2025.

[ii] Papul Lama, ‘Sexual And Gender-Based Violence Against Dalit Women And Girls In India’ (COFEM 2022) https://cofemsocialchange.org/sexual-gbv-dalit-women-girls-india/ accessed 23 July 2025

[iii] International Convention on the Elimination of All Forms of Racial Discrimination 1965.

[iv] CERD General Recommendation XXIX on Article 1, Paragraph 1, of the Convention (Descent), (2002)

[v] Shritha Vasudevan , ‘A Gendered Refutation of Epiphenomenal Norms Through the Median Voter: A Case Study of India’s CEDAW Compliance’ (2019) 33 Emory International Law Review 224–258.

[vi] Ibid.

[vii] International Convention on the Elimination of All Forms of Racial Discrimination 1965.

[viii] CERD General Recommendation XXIX on Article 1, Paragraph 1, of the Convention (Descent), (2002)

[ix] D Keane, ‘India, The UN and Caste as a Form of Racial Discrimination: Resolving the Dispute’ in U Davy and A Fluchter (eds), Imagining Equals: Concepts of Equality in History and Law (Bielefeld University Press 2022) 201 https://doi.org/10.1515/9783839458877-008

[x] EPW Engage, ‘Caste and race: Discrimination based on descent’ (Economic and Political Weekly 2021) https://www.epw.in/engage/article/caste-and-race-discrimination-based-descent accessed 23 July 2025

[xi] Safai Karamchari Andolan v Union of India (2014) 11 SCC 224

[xii] Keane (n 9).

[xiii] EPW Engage(n 10).

[xiv] Convention on the Elimination of All Forms of Discrimination against Women New York, (1979).

[xv] Proviso to Section 149, Companies Act, (2013).

[xvi] Vasudevan (n 5).

[xvii] Vasudevan (n 5).

[xviii] Monica Jha, Shamsheer Yousaf & Sriram Vittalamurthy, ‘How Mallah women fought caste hierarchy and sex slavery’ (The Wire 2024), https://thewire.in/special/how-mallah-women-fought-caste-hierarchy-and-sex-slavery-in-bihar  accessed 23 July 2025.

[xix] Jha Et al. (n 18).

[xx] Bihar Self-Supporting Cooperative Societies Act, (1996)

[xxi] Jha Et al. (n 18).

[xxii] Jha Et al. (n 18).

[xxiii] Jha Et al. (n 18).

[xxiv] Patan Jamal Vali v. The State of Andhra Pradesh 2021 SCC OnLine SC 343

[xxv] Arzoo Chaudhary & Akarsh, ‘Recognizing Intersectionality and Ability of Disabled Persons to Testify: Pratan Jamal Vali v. State of A.P.’ (2021) ILI Law Review https://ili.ac.in/pdf/17.pdf accessed 23 July 2025

[xxvi] Rongeet Poddar & Gursimran Kaur Bakshi, ‘Intersectionality in Gender-Based Violence: The Supreme Court of India Breaks New Ground’ (The Contemporary Law Forum 2021) https://tclf.in/2021/08/07/intersectionality-in-gender-based-violence-the-supreme-court-of-india-breaks-new-ground/  accessed 23 July 2025

[xxvii] Patan Jamal Vali v. The State of Andhra Pradesh 2021 SCC OnLine SC 343