EQUALITY AND NON-DISCRIMINATION

The right to equality and non-discrimination is a fundamental substantive right that underpins
the legal and moral framework of democratic societies. This right asserts that all individuals,
regardless of their race, gender, ethnicity, religion, sexual orientation, or other status, are
entitled to the same treatment under the law and should have equal access to opportunities and
resources. This principle is often encapsulated in the maxim “All are equal before the law,”
which is a cornerstone of international human rights law as well as many national constitutions.

NB
• Equality and non-discrimination are central to the corpus of HRL.

Principles and Applications:

Equality

- Equal Protection under the Law: This principle ensures that all individuals have
the same legal protections and are subject to the same legal obligations. Laws
should be applied uniformly and fairly, without favoritism or prejudice.
- Equality of Opportunity: This aspect focuses on providing all individuals with
equal chances to develop their personal abilities and to pursue their professional or
personal aspirations without being hindered by systemic discrimination or historical
injustices.

Affirmative Action: In some contexts, achieving substantive equality may require

implementing special measures to correct historical inequalities and systemic
discrimination. Affirmative action, including policies like quotas or preferential
treatment, can be a contentious but sometimes necessary tool to level the playing field.

Non-Discrimination
This is the core aspect of the right to equality. It prohibits any distinction, exclusion, restriction,
or preference based on any grounds such as race, color, sex, language, religion, political or
other opinion, national or social origin, property, birth, or other status. The aim is to prevent
bias or prejudicial treatment that can lead to marginalisation and oppression.
Legal Frameworks

Internationally, the right to equality and non-discrimination is enshrined in various human

rights instruments, such as:

- The Universal Declaration of Human Rights (Articles 1, 2) & (7, 10, 16, 21, 23)
- UN Charter ( Preamble; Article 1(3))
- The International Covenant on Civil and Political Rights ((2,3,4, 23(4), 25, 26
(stand- alone clause on non- discrimination)
- The International Covenant on Economic, Social and Cultural Rights (Article 2)
Nationally, constitutions and laws incorporate this right in varying degrees. Jurisdictions may
have anti-discrimination laws targeting specific areas like employment, education, and
housing, designed to protect individuals from unfair treatment.

NB:

• They have been widely adopted - Domestically - virtually, every liberal democratic state
guarantees equality in its constitution & Internationally - requirements of equality and non-
discrimination have been at the centre of IHRL (multiple treaties and their preambles highlight
the centrality of equality and non- discrimination provisions)
Equality and non-discrimination - two sides of the same coin? Negative and positive
forms of the same principle?

The concepts of equality and non-discrimination are often intertwined and viewed as two sides
of the same coin, yet they have distinct nuances and applications within the legal and social
frameworks. Understanding the relationship between these two principles requires an in-depth
analysis of their definitions, applications, and the implications they have for individuals and
society.

Equality:

Equality is a principle centered on the idea that all individuals should be treated the same way
and have the same opportunities, rights, and obligations, regardless of their specific
characteristics or circumstances. Equality aims to ensure that every person has an equal chance
to make the most of their lives and talents. It is often associated with the idea of fairness and
parity in treatment and opportunity.

There are different types of equality:

- Formal Equality (Equality before the law): This is the most traditional sense of
equality, emphasizing that laws and policies should apply equally to everyone, without
favoritism or bias. It's based on the concept of “sameness” and implies that everyone is
treated identically.

NB
• Assumes that equality is achieved if a law/policy treats people in a neutral manner

• As such, universal laws are applied to everyone equally

• The concept of formal equality can be desirable/appropriate in some circumstances

• Eg: one person-one vote; equal pay for equal work, ...

• However, formal equality may not always guarantee equal outcomes (if anything, formal

equality inevitably leads to unequal outcomes, given the existing inequalities)

 Thus, sameness of treatment, especially when there are gross disparities in position or when
people are situated in widely different circumstances, is highly undesirable à in fact, it may
exacerbate existing disparities (need for substantive equality)

- Substantive Equality: Recognises that treating everyone exactly the same may not
result in actual equality due to differences in starting positions, capabilities, needs, or
historical inequalities. This form of equality seeks to achieve equal outcomes through
the accommodation of differences and may involve differential treatment to address
specific needs or to correct past injustices.
NB

• Concerned with the effects of laws/policies/practices + ensuring that they do not only

maintain, but rather alleviate the inherent disadvantage that particular groups experience

• An approach in which the equality focus is on the objective/goal to be attained (and not
on measuring the nature of treatment per se)

Non-Discrimination:

Non-discrimination is a principle aimed at ensuring that no individual or group is treated less

favorably than others based on prohibited grounds such as race, gender, age, religion, sexual
orientation, disability, or social status. Non-discrimination focuses on eliminating unjust or
prejudicial treatment that leads to exclusion, restriction, or preference.

There are two main forms of discrimination:

- Direct Discrimination: Occurs when an individual or group is treated less favorably

than others in similar situations because of a specific characteristic. It is often easier to
identify and legislate against because it's overt and explicit.
- Indirect Discrimination: Happens when a seemingly neutral policy, rule, or practice
has a discriminatory effect on a particular group, even though it is not explicitly aimed
at that group. Indirect discrimination addresses the unintended consequences of certain
criteria, conditions, or practices.

Interconnection and Differences:

Interconnection: Equality and non-discrimination are interconnected because discrimination

is a major barrier to achieving equality. Eliminating discrimination is a necessary step towards
achieving both formal and substantive equality. In this sense, they can be seen as two sides of
the same coin, working together to ensure that everyone has equal rights and opportunities.

Differences: However, the two principles are not identical. Equality, particularly substantive
equality, can require positive actions and measures (such as affirmative action) to address and
rectify inequalities. Non-discrimination, on the other hand, is primarily focused on eliminating
unfair treatment based on specific characteristics. It is more about preventing harm than
ensuring positive outcomes.
Negative and Positive Forms

Negative Forms: Both principles have negative forms - non-discrimination by preventing

unfair treatment based on arbitrary characteristics, and equality by ensuring that laws and
policies do not favour some individuals over others without a justified reason.

Positive Forms: They also have positive forms. Positive non-discrimination might involve
taking specific measures to prevent or compensate for historical discrimination. Positive
equality (substantive equality) goes beyond mere equal treatment to ensure equal outcomes,
often requiring special measures or accommodations for disadvantaged groups.
While equality and non-discrimination are closely linked and overlap in their goals and
applications, they are not entirely the same. Equality is about ensuring everyone has the same
rights and opportunities, which can sometimes require different treatment or special measures
to achieve an equitable outcome. Non-discrimination is about ensuring that no one is treated
worse than others based on certain characteristics. Together, they form a comprehensive
approach to promoting justice and fairness in society, addressing both the removal of barriers
and the proactive fostering of an environment where everyone has the ability to thrive.

NB

• Equality: equals be treated equally

• Non-discrimination: precludes differential treatment on unreasonable grounds

• The guarantees of E&ND mandate both – de jure (formal) and de facto (substantive) equality

• Formal and substantive equality are different but interrelated

• The right to equality has traditionally been understood as “formal” equality

Challenges and Critiques of Equality and non- discrimination

The implementation of the right to equality and non-discrimination faces several challenges.
These include entrenched social prejudices, institutional biases, and economic inequalities that
are deeply embedded in the fabric of societies. Critics of affirmative action argue that such
policies can lead to reverse discrimination and undermine the meritocratic principle. However,
proponents contend that temporary measures are necessary to dismantle systemic barriers and
ensure genuine equality.
Plessey v Fergusson 163 US 537 (1896)

This is a landmark case in the history of the United States Supreme Court, decided in 1896.
This case is infamously known for its establishment of the “separate but equal” doctrine that
justified racial segregation laws for public facilities under the pretense that separate facilities
for black and white people were acceptable if they were equal.

The case originated when Homer Plessy (claimant), a man of mixed racial heritage, deliberately
sat in a railroad car designated for white passengers in Louisiana, in direct violation of a state
law mandating racial segregation on public transportation. Plessy’s challenge was not
accidental; it was a planned act of civil disobedience aimed at challenging the constitutionality
of racial segregation laws.

Plessy argued that the segregation law violated the Thirteenth Amendment, which abolished
slavery, and the Fourteenth Amendment, which guarantees equal protection under the laws to
all citizens.

Supreme Court Decision

The Supreme Court, in a 7-1 decision, upheld the Louisiana law, stating that segregation did
not in itself constitute unlawful discrimination. The majority opinion, written by Justice Henry
Billings Brown, held that as long as the separate facilities provided for blacks were equal to
those provided for whites, segregation did not violate the Fourteenth Amendment.

Justice John Marshall Harlan was the sole dissenter, famously arguing that the Constitution is
“color-blind” and condemning the majority’s decision as upholding a state of racial inferiority
and subordination.

NB

- The 14th Amendment was not intended to give African Americans social equality but only
political and civil equality with white people
- “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon
physical differences.”
- “if the civil and political rights of both races be equal, one cannot be inferior to the other
civilly or politically. If one race be inferior to the other socially, the Constitution of the
United States cannot put them upon the same plane”

Impact and Legacy

The “separate but equal” doctrine established by “Plessy v. Ferguson” legitimised an era of
more rigid and widespread racial segregation through the implementation of Jim Crow laws
across the American South. These laws enforced segregation in practically all public facilities
and aspects of life, leading to profound social and economic inequalities.

The decision stood as a legal precedent for over half a century until it was finally overturned
by “Brown v. Board of Education of Topeka” in 1954, which declared that racial segregation
in public schools was inherently unequal and thus unconstitutional, marking the beginning of
the end for the Jim Crow era.

The case remains one of the most criticised decisions in the history of the U.S. Supreme Court,
representing a period in American history marked by profound racial injustice and inequality.
Its legacy is a reminder of the law’s power to both perpetuate and dismantle systemic racism.

1893 (one year after Plessey’s arrest) - M.K. Gandhi - Indian barrister - travelling from Durban
to Pretoria in South Africa in the first-class car with white passengers - complaint by a white
passenger that “coloured” people were expected to sleep in the luggage car – he was thrown
out of the train. This ejection from the train was a personal humiliation and it also marked the
birth of one of the 20th century’s most influential leaders and the genesis of nonviolent
resistance as a powerful tool for social change.

Brown v Board of Education 349 U.S. 294 (1955)

This is one of the most pivotal Supreme Court cases in American history, decided in 1954. This
landmark decision marked a significant turning point in the struggle for civil rights in the
United States, particularly in terms of ending racial segregation in public schools.

Background:

The case originated from several different lawsuits all challenging the racial segregation of
public schools, which had been sanctioned under the “separate but equal” doctrine established
by the Supreme Court’s decision in “Plessy v. Ferguson” in 1896. These cases were
consolidated under the name “Brown v. Board of Education, with Oliver Brown being the first
listed plaintiff, which is why the case took on his name. The Brown case specifically addressed
the segregation of public schools in Topeka, Kansas.

The Legal Challenge

The plaintiffs in the Brown case, represented by Thurgood Marshall and the NAACP Legal
Defense and Educational Fund, argued that segregation in public schools created a sense of
inferiority among African-American children and damaged their educational opportunities.
They contended that the segregated school systems were inherently unequal and thus violated
the Equal Protection Clause of the 14th Amendment to the United States Constitution.

Supreme Court Decision

The Supreme Court, under Chief Justice Earl Warren, issued a unanimous decision on May 17,
1954, stating that racial segregation of children in public schools was unconstitutional. The
Court’s opinion declared that “in the field of public education, the doctrine of ‘separate but
equal’ has no place,” as segregated schools are inherently unequal. The decision was
groundbreaking because it overturned the “Plessy v. Ferguson” ruling that had allowed for
“separate but equal” facilities, including schools.

The Court acknowledged the detrimental effects of segregation on the education and personal
growth of African American children, highlighting that segregation significantly hindered their
educational and developmental progress.
Aftermath and Significance

The Brown decision did not immediately desegregate public schools; instead, it was the starting
point for a long and tumultuous struggle for civil rights in America. Subsequent rulings and
legislation, including the Civil Rights Act of 1964 and the Elementary and Secondary
Education Act of 1965, were necessary to enforce desegregation.

The ruling served as a catalyst for the civil rights movement, inspiring a wave of activism and
increasing momentum for change. It highlighted the role of the judiciary in addressing and
rectifying social injustices and inequalities.
The case remains a cornerstone of civil rights jurisprudence and is celebrated for its profound
impact on American society, advancing the cause of equality and setting a legal precedent that
would be used to challenge other forms of discrimination. It stands as a testament to the power
of judicial review and the ongoing struggle for racial equality in the United States.

THE POSITION OF CASTE-BASED DISCRIMINATION IN INTERNATIONAL

HUMAN RIGHTS SYSTEM?

Caste-based discrimination is a form of discrimination that has been recognised and addressed
within the international human rights framework, though it is not specifically mentioned in the
foundational human rights documents. The issue is most prevalent in countries with significant
populations that follow social systems with hereditary social stratification, such as India, Nepal,
Pakistan, Bangladesh, and Sri Lanka, among others. However, caste-like discrimination is not
limited to South Asia and can be found in other parts of the world, affecting various
communities and groups.

International Human Rights Instruments

While specific references to caste-based discrimination may not be found in early key
international documents, the principles laid out in these documents provide a basis for
combatting such discrimination:

Universal Declaration of Human Rights (UDHR): Although it does not specifically mention
caste, the UDHR sets forth fundamental human rights to be universally protected, including
equality before the law and freedom from discrimination.

International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD): While primarily focused on race, this convention has been interpreted to also
encompass caste-based discrimination under its provisions. Countries that are parties to this
convention are obligated to outlaw all forms of racial discrimination, which can include
discrimination based on descent, a category applicable to caste.

International Covenant on Civil and Political Rights (ICCPR) and International

Covenant on Economic, Social and Cultural Rights (ICESCR): Both covenants advocate
for the rights to equal treatment and non-discrimination, providing a legal framework to combat
caste-based discrimination.

Actions and Interpretations

Committee on the Elimination of Racial Discrimination (CERD): This UN body has

explicitly recognised caste-based discrimination as a form of racial discrimination and has
called on states to take action against such practices.

Durban Declaration and Programme of Action (2001): Emerging from the World
Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, this
declaration acknowledged caste-based discrimination as a human rights violation and called
for remedial actions.
UN Special Rapporteurs and Working Groups: Various UN special rapporteurs on racism,
human rights, and contemporary forms of slavery have addressed caste-based discrimination
in their reports and recommendations.

Challenges and Implementation

Despite international recognition, the effective addressing and elimination of caste-based

discrimination face several challenges:

- National Legislation and Enforcement: While some countries have enacted laws to
combat caste discrimination, enforcement remains inconsistent, and discrimination
persists in various forms.
- Social and Cultural Practices: Deeply entrenched social and cultural norms can
perpetuate caste discrimination, making legal and policy changes difficult to implement
at the grassroots level.
- Lack of Awareness and Recognition: In regions outside South Asia, there may be less
awareness or recognition of caste-based discrimination, hindering global efforts to
address it.
- Data Collection and Research: Limited data on the extent and forms of caste-based
discrimination can impede the development of targeted interventions and policies.

Caste-based discrimination is recognised within the international human rights system as a

violation of fundamental human rights principles. While not explicitly mentioned in the early
foundational documents, interpretations and subsequent declarations have clearly positioned
caste-based discrimination as a concern of international human rights law. Efforts to combat
such discrimination require a multifaceted approach, including legal reform, education,
grassroots activism, and international cooperation to ensure that the principles of equality and
non-discrimination are upheld for all individuals, regardless of caste or social status.

NB

The position of caste-based discrimination in international human rights system:

• Simply by virtue of birth in a certain social stratum, some groups are considered to fall on the
spectrum ofbeing worthy of lesser respect to have fewer rights to being ‘untouchable’
• Those with privilege have not ‘earned’ the status as such

• International community has been slow to acknowledge caste discrimination as a ‘human

rights’ issue

• Until late 1990s, violence, exclusion, humiliation and suffering by millions of people
discriminated on the basis of caste were not covered under any international human rights
framework

• It was not covered under any international convention or under within the scope of any treaty-
body

• Neither did major HR NGOs take up the issue

• Not a problem particularly concerning India - maltreatment is also concentrated in other South
Asian countries (Pakistan, Bangladesh, Nepal, and Sri Lanka) + the large South Asian diaspora

Example: Examine the position of India/ Catse in the INTERNATIONAL CONVENTION ON

THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION ( Article 1); Sixty-
first session (2002), General recommendation XXIX on article 1, paragraph 1, of the
Convention (Descent)

[Sandra Fredman] Fredman, S., “Substantive Equality Revisited”| Four-dimensional

conception of substantive equality
Sandra Fredman, a prominent legal scholar, has developed a nuanced and influential conception
of substantive equality, which she describes as having four dimensions. This four-dimensional
approach aims to address the complexities and multifaceted nature of inequality, going beyond
the traditional binary understanding of equality as merely treating everyone the same (formal
equality) or as rectifying inequalities through differential treatment (simple substantive
equality). Fredman’s framework is designed to tackle systemic discrimination and to promote
genuine equality in a holistic manner.

- Redressing disadvantage (distributive dimension): This dimension focuses on

addressing and rectifying historical and systemic disadvantages that certain groups
face. Unlike formal equality, which could perpetuate inequality by treating unequal
groups as the same, this approach acknowledges that different groups may require
different treatment to achieve equitable outcomes. It involves identifying and targeting
the root causes of disadvantage, which can be economic, social, or political.
- Addressing stereotypes, prejudice, humiliation and violence (recognition
dimension): This dimension targets the cultural and social aspects of inequality.
Fredman emphasises the importance of challenging and changing societal attitudes and
norms that lead to discrimination and marginalisation. This includes combating
stereotypes, stigma, and prejudice that can be entrenched in laws, practices, and
everyday interactions. The aim is to change the way society perceives and values
different groups and individuals.
- Facilitating participation (participative dimension): The third dimension
emphasises the importance of ensuring that all groups have a voice in the decision-
making processes that affect their lives. This goes beyond mere formal participation to
ensuring that all individuals have the actual ability and opportunity to participate fully
and effectively in all areas of public and private life. It is about empowering
marginalised groups and ensuring that their perspectives and experiences are included
and valued.
- [Cautious approach by courts] Accommodating difference, including through
structural change (transformative dimension): This dimension recognises that true
equality often requires changes to existing structures, institutions, and practices. It
involves accommodating differences - not by assimilating everyone into the existing
framework, but by transforming the framework itself to be inclusive and flexible. This
could mean rethinking work structures to accommodate caregivers, changing
 educational methods to suit diverse learning needs, or redesigning public spaces to be
accessible to all.

Application and Impact

Fredman’s four-dimensional conception of substantive equality offers a comprehensive

framework for understanding and addressing inequality. It is particularly relevant for
policymakers, legal scholars, and activists who are working to design laws, policies, and
practices that advance equality. By considering these four dimensions, efforts to promote
equality can be more targeted, effective, and transformative.
This approach has influenced international human rights law and policy, as well as domestic
equality laws in various countries. It encourages a holistic view of equality, prompting
consideration of how different dimensions of inequality intersect and how best to address them
in a coordinated manner.

The four-dimensional conception of substantive equality provides a powerful tool for tackling
the complex realities of inequality, moving beyond traditional approaches to foster a more
inclusive, participatory, and fair society.

NB

- Earlier understanding - a breach of one of the substantive rights had to be proven for Article
14 ECHR to come into play - a ‘breach’ was a precondition
- But the wording u/a 14 ECHR is ‘enjoyment’ of Convention rights ‘shall be secured without
discrimination’
- There was a need to widen the scope - from ‘breach’ to ‘ambit’

The Belgian Linguistic case (No. 2) (1968) 1 EHRR 252

The case originated in Belgium, a country with a complex linguistic landscape primarily
divided between Dutch-speaking Flanders in the north and French-speaking Wallonia in the
south, with a bilingual region around Brussels. The linguistic divide has been a source of
tension and political complexity within Belgium.
The Belgian Linguistics case was brought forward by a group of French-speaking families
living in the Flemish region. These families wanted their children to receive primary education
in French, which was not provided by the local schools due to language laws enforcing Dutch-
language education in Flanders. The families argued that the absence of French-language
education in these regions violated their rights.

Legal Framework

The applicants lodged their complaints based on several articles of the European Convention
on Human Rights (ECHR), including:
- Article 2 of Protocol No. 1: This article guarantees the right to education. The applicants
argued that this right was violated since their children could not receive education in their
mother tongue.
- Article 14: This article prohibits discrimination on various grounds, including language.
The applicants claimed they were discriminated against based on language, infringing on
their children's right to education.

Decision and Implications

The European Court of Human Rights delivered a nuanced verdict. It held that there was no
violation of Article 2 of Protocol No. 1 as the right to education does not necessarily imply a
right to receive education in one’s mother tongue. However, the Court did find a violation of
Article 14 taken in conjunction with Article 2 of Protocol No. 1, establishing that the difference
in treatment based on language was not justified and constituted discrimination.

This decision was significant as it was one of the first times the ECHR had dealt with issues
related to education and language rights. The case established important precedents for the
protection of minority rights in Europe, emphasising that while states have a certain margin of
appreciation in how they organise their education systems, they must not discriminate on
grounds such as language.

The Belgian Linguistics case has had a lasting impact on international human rights law,
particularly in the field of education and minority rights. It remains a critical reference point
for discussions about language policy, education rights, and the rights of minority groups within
Europe and beyond.

NB

• Submission by the Belgian Government - violation of Article 14 without simultaneous

violation of another Article of ECHR was “legally impossible”

• Held: ‘breach’ of a substantive right was not necessary - it was enough for the discrimination
at issue to ‘touch the enjoyment’ of a specific right/freedom

• Test for violation of Article 14 ECHR - if the distinction has no objective and reasonable
justification

Indirect discrimination (- or disparate impact) - focuses on inequality of results rather than

inequality of treatment, unless it can be justified

D.H. & Othrs. Czech Republic ECHR Grand Chamber 2007

The case was brought by 18 applicants of Roma origin who were living in the Czech Republic.
The applicants alleged that they had been discriminated against in their access to education.
Specifically, they claimed that they had been wrongly and disproportionately placed in “special
schools” designed for children with intellectual disabilities. This segregation was based on their
ethnicity, resulting in inferior educational opportunities compared to their non-Roma peers.
The Czech Republic’s education system at the time featured this dual system where children
assessed with intellectual disabilities attended special schools, which had a more basic
curriculum compared to mainstream schools. A disproportionate number of Roma children
were placed in these special schools based on biased psychological assessments and tests that
did not take into account cultural and language differences.

Legal Framework

The applicants alleged that their placement in special schools constituted a violation of several
rights protected by the European Convention on Human Rights, particularly:
- Article 14 (Prohibition of Discrimination): They claimed that they had been
discriminated against based on their race and ethnic origin.
- Article 2 of Protocol No. 1 (Right to Education): They argued that their right to
education had been breached due to discriminatory practices in the school system.

Decision and Implications

In 2007, the ECHR delivered its judgment in favor of the applicants. The Court found that there
had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 2
of Protocol No. 1 (right to education). It was established that the Czech education system had
indeed indirectly discriminated against Roma children by disproportionately placing them in
special schools, thereby segregating them from mainstream education based on their ethnicity.

This judgment was groundbreaking for several reasons

- Precedent on Indirect Discrimination: The case set a significant precedent in

international law regarding indirect discrimination, recognising that practices and
policies that appear neutral on the surface can still have discriminatory effects on certain
groups.
- Impact on Educational Policies: Following the judgment, there was increased
pressure on European countries to reform their educational systems to prevent
segregation and ensure equal access to quality education for all children, particularly
targeting the inclusion of Roma children in mainstream education.
- Awareness and Activism: The case raised awareness about the challenges faced by
Roma communities across Europe, particularly in the field of education, and inspired
other legal actions against discriminatory practices.
The D.H. and Others v. Czech Republic case remains a cornerstone in the fight against racial
and ethnic discrimination in education, serving as a reminder of the importance of ensuring
equal opportunities for all children, regardless of their background.

NB

- even if a regulation is couched in neutral terms, in practice it discriminates against a

group (in this case, the Roma children) - the situation amounts to indirect discrimination
 - ‘a difference in treatment may take the form of disproportionately prejudicial effects of
a general policy or measure which, though couched in neutral terms, discriminates
against a group’.
- Indirect discrimination does not necessarily require discriminatory intent

A.T. v. Hungary (Communication No. 2/2003, CEDAW Committee, 2005)

Facts and Context:

A.T. v. Hungary is a landmark decision of the CEDAW Committee concerning domestic
violence and a state’s failure to provide adequate protection. The case was submitted by A.T.,
a Hungarian woman subjected to severe and repeated domestic violence by her ex-husband.
Despite her attempts to seek protection from Hungarian authorities, she was denied restraining
orders, and there was no adequate support system available for victims of domestic violence in
Hungary at the time. She was left in a vulnerable situation, without access to safe housing or
legal recourse to escape the violence.

CEDAW Committee’s Decision:

The CEDAW Committee found that Hungary had violated multiple articles of the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW), particularly
Articles 2(a)-(f) (obligations to eliminate discrimination) and Article 5(a) (modifying social
and cultural patterns of behavior).

State’s Duty: The Committee reiterated that the state has an obligation to take active and
immediate measures to protect women from gender-based violence, particularly domestic
violence, and to ensure that they have access to safe housing, legal remedies, and support
services.
Systemic issue: Hungary’s legal framework lacked the necessary provisions to protect women
from domestic violence, which was viewed as part of systemic discrimination against women.
The Committee noted that Hungary’s failure to take protective measures perpetuated an
environment where gender-based violence is tolerated.

Key implications:
This case is significant because it expanded the understanding of violence against women as a
form of discrimination under international law. It emphasised the due diligence obligation of
states to prevent, investigate, and punish acts of violence against women. The decision
influenced the development of domestic violence laws in many countries and brought attention
to the need for holistic state responses, including:
Legislative changes: Introduction of domestic violence laws with specific provisions for
restraining orders.
Judicial reforms: Training for judges and police on gender-sensitive approaches to domestic
violence.
Social services: Access to shelters and legal aid for victims of domestic violence.
 COMMENTS

CERD General Comment 29 (2002) - Discrimination Based on Descent

General Comment 29 of the Committee on the Elimination of Racial Discrimination (CERD)

deals specifically with descent-based discrimination, which includes discrimination based on
inherited social status, such as caste systems. This is a broad interpretation of the concept of
racial discrimination under the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD).

Analysis:
Definition of Descent-based Discrimination: The Comment expanded the scope of racial
discrimination to include distinctions made on the basis of descent, which historically affects
marginalized groups such as the Dalits in India, the Burakumin in Japan, and similar groups in
other countries. These groups often face exclusion and discrimination in employment,
education, housing, and social services.

Obligations of States: The General Comment outlines a range of obligations that states must
fulfill to eliminate this form of discrimination:
Legislative and Administrative Measures: States must enact laws that prohibit
discrimination based on descent and ensure that these laws are effectively enforced.
Access to Justice: The Comment stresses the need for access to legal remedies for victims of
descent-based discrimination, including criminal prosecution of those who perpetrate such
discrimination.
Protection from Violence: The General Comment also highlights the duty of states to protect
individuals from violence or threats of violence that arise due to their caste or social status.

Broader Impact:
This General Comment has been a key document in international human rights discourse,
especially concerning the treatment of caste-based discrimination. It underscores the need for
affirmative action policies and special measures to uplift socially disadvantaged groups. It also
lays the groundwork for future state accountability in combating systemic discrimination based
on descent.

Concluding Observations of CERD on India (CERD/C/304/Add.13, 1996)

In 1996, CERD released its Concluding Observations on India’s periodic report, raising serious
concerns about caste-based discrimination, particularly in relation to the treatment of Dalits
(Scheduled Castes), Adivasis (Scheduled Tribes), and other marginalised communities.

Key concerns raised by CERD:

Legal Enforcement of Anti-discrimination Laws: Despite India having constitutional and
statutory prohibitions against caste-based discrimination (e.g., the Scheduled Castes and Tribes
(Prevention of Atrocities) Act, 1989), CERD noted that enforcement remained weak, and Dalits
continued to face widespread discrimination and violence.

Economic and Social Disparities: CERD pointed out the entrenched poverty, lack of access
to education, and exclusion from public services that Dalits faced. Discriminatory practices
like untouchability continued to be pervasive in some rural areas.

Caste-related Violence: CERD raised alarms over the atrocities committed against Dalits,
including physical violence, sexual assault, and forced displacement. The Committee called for
more rigorous prosecution of those responsible for such crimes.

Recommendations:
- Strengthening the enforcement of anti-discrimination legislation and ensuring better
protection mechanisms for Dalits.
- Implementing affirmative action policies to improve the socio-economic status of
marginalized groups.
- Addressing the root causes of caste-based violence, such as social attitudes and
systemic exclusion from public life.

This document laid the foundation for subsequent international pressure on India to improve
protections for Dalits and to enhance the enforcement of anti-discrimination laws.

CERD General Recommendation 32 (2009) - Special Measures under ICERD

General Recommendation 32 deals with the interpretation and implementation of special

measures (i.e., affirmative action) under the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD). Special measures are intended to ensure the full and
equal enjoyment of human rights by marginalised groups, particularly those who face systemic
discrimination.

Analysis of key elements:

Purpose and Scope of Special Measures: Special measures are temporary actions designed
to counter the effects of historical discrimination and structural inequalities faced by
marginalized racial or ethnic groups. These measures are not discriminatory; rather, they aim
to achieve substantive equality by addressing existing disparities.

Criteria for Special Measures:

Special measures should be proportionate to the goals they aim to achieve and should be
discontinued once equality has been attained.
States should assess the effectiveness of special measures regularly and adjust or terminate
them once their objectives have been met.
Legal and Policy Frameworks: States are encouraged to implement special measures in areas
such as education, employment, healthcare, and public life to uplift marginalized racial and
ethnic communities. For example, quotas or preferential treatment in public employment may
be necessary to overcome centuries of exclusion and marginalization.

Significance:
This recommendation emphasises that special measures are not discriminatory but rather
necessary to level the playing field for those historically excluded from equal participation in
society. It provides a strong legal justification for states to adopt affirmative action policies and
highlights their temporary nature, which distinguishes them from permanent inequalities.

All four of these documents and cases underscore the obligations of states to combat systemic
forms of discrimination—whether based on gender, race, or descent—and to adopt both legal
and social measures to promote equality. The key takeaway from these analyses is that
international human rights law recognises the need for proactive state intervention (such as
special measures or affirmative action) to dismantle entrenched patterns of inequality and
provide protection to vulnerable populations. The state’s due diligence in protecting individuals
from discrimination and violence is central to these decisions and recommendations.