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Scheduled Castes, Dalits and Criminalisation by ‘descent’
Abstract
The Scheduled Castes/“Dalits” represent the “untouchables” in India's constitutional framework and are traditionally outside the four-tiered rung of the Hindu religion. The notion of “superiority, pollution and separateness” is ingrained in the stratification of caste and the victim complex is subsumed in the unwritten public code. Despite the safeguards in the constitution and affirmative legislation they still suffer from institutional discrimination and structural violence inherent in the caste system. It takes the form of hierarchy which is an intrinsic part of the Hindu faith and the Dalits are employed in occupations such as human scavenging. The prevalence of caste discrimination in the rural areas of India makes for any affirmative legislation to be ineffective for the majority of the population. The issue has been magnified in recent times by the ascension of Bharatiya Janata Party (BJP) into power which has retrenched Hindutva, with the consequence that Dalits who convert from Hinduism to Islam or Christianity have to forfeit access to welfare benefits. This paper analyses the cause of the institutional discrimination that criminalizes the Dalit communities and the lack of impact of the legal protections afforded to them. It will argue that the victimization of the “untouchables” will continue because of the rigid caste structure, lack of enforcement of legal protection in villages, economic privilege and the resort to ideology of the current government.
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Dr B.R. Ambedkar, one of the framers of the Indian Constitution who was from the Dalit background, defined caste as [a] “an enclosed class” and “endogamy is the only characteristic of caste” (2002).
The substantive and underlying principle of the caste system is Varna Dharma or in essence the division of labour. Marc Galanter (1969) argues that “the abolition of slavery at the middle of 19 th century extended discriminatory rights to many untouchables”, including those who had access to the courts at least “formally”. The legal system was not organized to deal with “graded inequality”; the overall British approach towards caste was a “policy of interference”. This was effected by the courts by the granting “injunctions to restrain member of particular castes from entering temples even ones that were publicly supported and dedicated to the entire Hindu community”. There were damages awarded for “purificatory ceremonies necessitated by the pollution caused by the presence of the lower castes; such pollution was actionable as a trespass on the person of the higher caste worshippers”.
The first President of the Indian Union Dr S. Radhakrishnan in his famous Upton lectures argued for a non-doctrinaire approach to religion by arguing for universal suffrage. He stated (1957: 58): “The Political Ideal of the world should not be so much a single empire with a homogenous civilisation but a brotherhood of free nations existing side by side in peace and order, harmony and cooperation.”
This was exemplified in the support the Congress Party extended to the Khilafat movement in India which was for the restoration of the Caliph in Turkey, a spiritual institution that represented the central authority of the Muslim faith before it was abolished by Mustapha Kemal Atatürk (Qureshi 1978).
Press Information Bureau, Government of India Ministry of Social Justice and Empowerment. 24/2/15 pib.gov.in/newsite/Pressrelease.aspx?relid=115783.
India: Official Dalit population exceeds 200 million, International Dalit Solidarity Network 29/5/13. https://idsn.org/india-official-dalit-population-exceeds-200-million/.
“According to Hindu mythology, animals are the off spring of Kasyapa by his many wives; who is also the father of gods, demons and human beings” (Garg 1992: vol. 2, 480).
The Hindu texts “know” the concept of the “One” as well as “the many”. To what is One, sages give many names -they call it Agni, Yama, Matarisvan ( Rig Veda, 1.164). Bass 2004.
“Hindu law concepts, however, invisibly but deeply continue to influence the entire structure of Indian civil and criminal laws, including particularly the Constitution of 1950 and remains, therefore, an integral element of Indian and wider South Asian and globally Indic identity that no amount of secularising law reform could ever entirely eradicate.” (Menski 2010).
Constitution of India. index.gov.in/sites/upload_files/npi/files/coi_part_full.pdf.
In Union Government v. LIC of India (1995) AIR, SC181 the Supreme Court confirmed that the preamble was an integral part of the Constitution and served the following purposes. (a) It indicates the source from which the Constitution comes, viz., the people of India. (b) It contains the enacting clause which brings into force the Constitution, which makes it an act of the people, for the people and by the people. (c) It declares the rights and freedoms which the people of India intended to provide to all citizens and the basic type of government and polity which was to be established. (At paras 7–10.)
The term Scheduled Castes was drawn up by the British in the Government of India Act of 1935 who defined it as “such castes, races or tribes or parts of groups within castes, races or tribes which appear to his Majesty in Council may prefer”. The Government of India (Scheduled Castes) Order of 1950 contained lists (or schedules) of castes eligible for certain benefits, such as running for election or constituencies reserved for SCs.
Article 30 states “Right of minorities to establish and administer educational institutions (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
It is laid down in Article 46, as a directive principle of state policy, that the “State shall promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. To promote the educational advancement of the socially and educationally backward classes of citizens or of the Scheduled Castes and Scheduled Tribes in matters of admission of students belonging to these categories in unaided educational institutions, other than the minority educational institutions referred to in clause (1) of article 30 of the Constitution, it is proposed to amplify Article 15.”
This constitutional mechanism was provided by the powers under clause (1) of Article 341 of the Constitution of India The President in consultation with the Governors and Rajpramukhs of the States concerned, is pleased to make the following namely: This Order may be called the Constitution (Scheduled Castes) Order, 1950. Published with the Ministry of Law Notification No. SRO 385, dated 10 August 1950, Gazette of India, Extraordinary, 1950, Part II, Section 3, p. 163.
Article 44 of the Indian Constitution allows every religion to practise their own Personal Status Laws. The Directive Principle as it is known sets out its implementation as a duty of every state in the Indian Union. The passage of four Hindu Code Bills in the 1950s ensured a plank of legislation that was earmarked towards creating the Hindu Personal Law. These laws govern the Hindu Marriage Act, 1955, sections 7(1) and 29, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act 1956.
Section 2 of this Act lays down a sanctions regime for the punishment of those who abuse the Dalits. Section 2(iv) sets out the punishment of the public servants who commit any offence and who shall be punishable with imprisonment which shall be for not less than one year but which may be extended for the punishment for that offence.
Article 38 states “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State shall, in particular, strive to minimise the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
Article 340 (1) of the Indian Constitution allows the President to order a commission, consisting of such persons as he thinks, fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the union or any state to remove such difficulties and as to improve their condition and as to the grants that should be made, and the order appointing such commission shall define the procedure to be followed by the commission.
The former Congress Prime Minister V.P. Singh on 7 August 1990 declared the government was to implement the report by the reservation of 27 per cent posts in government services for Other Backward classes (OBC) apart from the existing 22.5 per cent reservation of posts for Scheduled castes and Scheduled Tribes. The declaration led to the unprecedented violent agitation by BNP sympathizers which started from Delhi and later spread throughout Northern India and some parts of Southern India. http://parliamentofindia.nic.in/is.isdebis10/ses6/0319039301.htm; http://parliamentofindia.nic.in/is.isdebis10/ses6/0319039301.htm (both accessed 19 March 1993).
In M.R. Balaji v. State of Mysore (1963) SC 649, the Supreme Court held that under no circumstances can the allocation of reserved places under this provision exceed 50 per cent as maximum.
For an empirical study see Deshpande 2000.
The Indian Supreme Court ruled in Safai Karamchari Andolan (Sanitation workers) & Ors. v Union of India & Ors. (2003) No. 583 of 2003 that there was a three and a half year delay in the enforcement of the Act. In the first instance, the Act applied to the states of Andhra Pradesh, Goa, Karnataka, Maharashta, Tripura and West Bengal and to all the Union Territories. It was expected that the remaining states would adopt the Act subsequently by passing appropriate resolutions under Article 252 of the Constitution. However, as noted by the National Commission for Safai Karamcharis (a statutory body, set up under the National Commission for Safai Karamcharis Act, 1993), in its third and fourth Reports (combined) submitted to the Parliament, the 1993 Act was not being implemented effectively. Further, the estimated number of dry latrines in the country is 96 lakhs and the estimated number of manual scavengers identified is 577,228. It also noted (p. 6) that manual scavengers were being employed in military engineering works, the army, public sector undertakings, Indian Railways, etc.
The Protection of Civil Rights Act, 1955, sections 3–7A, define the following as offences if committed on the ground of untouchability: (i) Prevention from entering public worship places, using sacred water resources; (ii) Denial of access to any shop, public restaurant, hotel, public entertainment, cremation ground, etc. (iii) Refusal of admission to any hospital, dispensary, educational institutions, etc. (iv) Refusal to sell goods and render services; (v) Molestation, causing injury, insult, etc; and (vi) Compelling a person on the ground of untouchability to do any scavenging or sweeping or to remove any carcass, etc.
Section 2 of this Act lays down a sanctions regime for the punishment of those who abuse the Dalits. Section 2(iv) sets out the punishment of the public servants who commit any offence and who shall be punishable with imprisonment which shall be for not less than one year but which may be extended for the punishment for that offence.
Laura Dudley Jenkins argues: “The way conversion is discussed and defined in these documents takes the convert out of the analysis. The anticonversion laws reinforce social hierarchies by portraying certain, already socio-economically disadvantaged groups as innately weak and credulous. Ultimately, the laws reinforce existing social categories by making it harder for people to change their identities.” (2008: 113).
Nilay Saiya and Stuti Manchanda (2019), using an empirically tested hypotheses, dependent on a time-series, negative binomial analysis of the Indian states from 2000 to 2015, argue that the “anti-conversion laws actually serve to generate violent anti-Christian persecution by creating a culture of vigilantism in the states where such laws exist”. 6
In Rev. Stainislaus v. State of Madhya Pradesh (AIR 1977 SC 908), the Supreme Court delivered a verdict on the constitutional validity of two of the earliest pieces of anti-conversion legislation in India: the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967, by validiting both pieces of legislation. Chief Justice Ray ruled that the word “propagate” meant “to transmit or spread one's religion by an exposition of its tenets”, but to not include “the right to convert another person to one's own religion” (para. 20).
The VHP leader Praveen Togadia has defended ghar wapsi saying, “Since the Supreme Court has observed that Hinduism is not a religion but a way of life, ‘ghar wapsi’ cannot be termed as unconstitutional.” (The Statesman 2015).
This states “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The attention of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (“Special Rapporteur on Racism”) was first drawn to the situation of Dalits in India in 1996 (E/CN.4/1997/71, para. 127).
The Optional Protocol came into force on 23 March 1976. Article 1 states:“A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.”
UN Human Rights Comm. [HRC], Concluding Observations of the Human Rights Committee: India 7, UN Doc. CCPR/C/79/Add.81 (4 August 1997).
Article 1: “In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” www.ohchr.org/EN/Professionalinterest/Pages/CERD.aspx
Concluding observations (CERD/C/63/CO/11 para. 25) and its General Recommendation 29 (2002) on descent.
The Commission on Human Rights, taking note of resolution 2004/17 of 12 August 2004 of the SubCommission on the Promotion and Protection of Human Rights, decided to take this step, on the basis of the three working papers submitted to the Sub-Commission on this topic (E/CN.4/ Sub.2/2001/16, E/CN.4/Sub.2/2003/24 and E/CN.4/Sub.2/2004/31), the comments made during the sessions of the SubCommission and national human rights institutions, relevant organs and agencies of the United Nations system and NGOs on the basis of information circulated by the Special Rapporteurs.
Anthony J. Parel (2006) defines “swaraj” as a state of being “of individuals and nations”. Pearl goes on to state that Gandhi was “not a philosopher and only major contribution to philosophy was Satyagraha which was a new method of defending rights”. This was translated as “passive resistance as a method of securing rights by personal suffering it is the reverse of resistance to arms”. The “securing of rights” in this way, argues the author, was complemented by the duty (dharma) in every human being.
When he was Chief Minister of Gujarat Narendra Modi wrote a pamphlet that stated:“I do not believe that they (Valmikis-bhangis ie ‘untouchables‘) have been doing this job to sustain their livelihood. Had this been so, they would not have continued with this type of work generation after generation. At some point of time, somebody must have got the enlightenment that it is their (Valmiki's) duty to work for the happiness of the entire society and the gods; that they would have to do this job bestowed upon them by gods; and that this job of cleaning up could continue as an unintentional spiritual activity for centuries. This should have continued generation after generation. It is impossible to believe that their ancestors did not have the choice of adopting any other work or job.” Modi 2007.