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Combat Law, Issue #4 : Dalits
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Combat Law, Issue 4 - Social scientists have inquired into whether the religious and societal notions (or ideologies) of behavior in different societies confirm or come in conflict with the secular and universalistic approach to human rights. They have tried to identify the (religious and social) codes of behavior that conflicted with or supported the universal rights. Some have considered the UN human rights framework to be the particular expression of secular humanists against which other religious and social traditions are examined and compared.

We will discuss how the Hindu social order (particularly its main pillar, the caste system and untouchability) in its classical form comes in direct conflict with the universal human rights framework. And how the continuation of the practice of caste system and untouchability in modified forms leads to the ubiquitous violations of human rights, particularly of the dalits. Despite the legal provisions, since the caste system and the institution of untouchability continue to govern the social behaviour of high caste Hindus it makes the enforcement of human rights difficult, if not impossible.

The drafting of the Indian Constitution in late 1947-48 coincided with the UN Declaration on Human Rights in 1948. The section of the Constitution on "Fundamental Rights" and the "Directive Principles" emulates the UN Declaration. The provision in the Constitution reads: [It is solemnly resolved] to secure to all citizens Justice: Social, Economic and Political, Liberty of thought, expression, belief, faith and worship. And equality of status and of opportunity, and to promote among them all fraternity, assuring the dignity of individual and unity.

Though the situation has changed gradually, dalit residential settlements are still 'outside the pale'.

The Constitution also states that: The state shall not discriminate against any citizen on grounds of religion, race, caste, place and birth or any form. In the Directive Principles it is added that The State shall promote with special care the educational and economic interest of the scheduled castes/tribes and shall protect them from social injustice and all forms of exploitation. In accordance with these Constitutional provisions a number of measures have been initiated by the government for providing protection to untouchables (Scheduled Castes or SCs). These measures are both protective and developmental. In the 'protective' sphere untouchability was legally abolished and its practice in any form forebidden by the Protection of Civil Rights (Anti-Untouchability) Act of 1955.

Nearly two decades later, protections for SCs were reviewed to make them more stringent and effective in the Bonded Labour (Abolition) Act 1976. In 1989, the Government enacted yet another Act, namely the Scheduled Castes and Tribes (Prevention of Atrocities) Act in order to prevent atrocities against SC/STs. The need for this additional Act was felt because under the circumstances, PCR 1955 and normal provisions of the Indian Penal Code had been found to be inadequate to provide safeguards to SC/ST against several crimes. In the economic, educational and political spheres provisions have been made through the reservation and representation to improve their access and participation. The provision of political reservation in various bodies, reservation in government services, admission to educational institutions and in several other areas are some of the promotional measures under this category. It must be mentioned that discrimination in private sphere - social or economic - is not covered by this legislation.

Human Rights Under Hindu Social Order

The Hindu social order, particularly its main pillars: the caste system and untouchability, presents a unique case. As a system of social, economic and religious governance it is founded not on the principle of liberty (or freedom), equality and fraternity - the values which formed the basis of universal human rights - but on the principle of inequality in every sphere of life. In Ambedkar's view, the doctrine of inequality is the core and heart of the Hindu social order. It leaves no difference between legal philosophy (and law) and moral philosophy (morality). (Ambedkar 1987 first published, Deepak Lal, 1988). The three unique features of the caste system need to be understood.

In the social sphere the caste system involves (a) division of people in social groups (castes). The social, religious, cultural and economic rights of members of the castes are predetermined in advance by birth into that caste and are hereditary (b) an unequal distribution of these rights across caste groups (c) provision of a mechanism of social and economic ostracism calculated to ensure rigid adherence to the system and justification of the social system by the philosophy of Hinduism. In the sphere of economic rights, the Hindu social order also lays down a scheme of distribution, namely (a) it fixes the occupations for each caste by birth and its hereditary continuation; (b) unequal distribution of these economic rights related to property, trade, employment, wages, education etc., among the caste groups; and (c) hierarchy of occupation based on social stigma.

These features imply that the Hindu social order is based on three interrelated elements, namely predetermination of social, religious and economic rights of each caste based on birth; the unequal and hierarchical (graded) division of these rights among the castes; and provision of strong social, religious and economic ostracism supported by social and religious ideology to maintain the Hindu social order.

In this framework the concept of "human rights" under the Hindu social system takes on a specific meaning. Unlike other human societies, the Hindu social order in its classical form does not recognize the individual and his distinctiveness as the center of the social purpose. The unit of the Hindu society is not the individual. Even the family is not regarded as a unit of society except for the purposes of marriages and inheritance (Ambedkar 1987, first published). The primary unit of society is caste. There is no room for individual merit and the consideration of individual justice. Rights that an individual has are not due to him personally; it is due to him because he belongs to a particular caste. Similarly, if an individual suffers from a lack of rights, it is not because he deserves it by his conduct. The disability is imposed upon the caste and as a member of the caste that is his lot.

The other implication is that, the caste system also involves the principle of rank and gradation, in so far as the rights increase in ascending order from untouchable to Brahmin. It is a hierarchically interlinked system. In this framework castes are artfully interlinked with each other in a manner such that the right and privileges of higher castes become the disabilities of the lower castes, particularly the untouchables. In this sense, in Ambedakar's view the caste in a single number cannot exist. Caste can exist only in plural number. There cannot be such a thing as caste as a singular phenomenon. So one has to look at the castes as a system, where each is interlinked with other in unequal measures of social, religious, economic relations and rights.

This hierarchically interlinked character of the caste system implies a concept of "human rights" and "humanhood" which is different and unique. In this particular order of hierarchy the Brahmins are not only placed at the top but are considered to be "superior social beings" worthy of special rights and privileges. At the bottom, the untouchables are treated as "sub-human beings or lesser human beings" considered unworthy of many rights. Untouchables are considered as inferior social beings and therefore not entitled to any individual rights i.e., civic, religious, political and economic. In fact, the disabilities are so severe that they are physically and socially isolated and excluded from the rest of the Hindu society. Isolation and exclusion of untouchables is a unique feature of the Hindu social order. Classes or social groups are common to all societies, but as long as the classes or social groups do not practice isolation and exclusiveness they are only non-social in their relations towards one another. "Isolation and exclusiveness" makes them anti-social and inimical to one another. (Ambedkar, first published 1987).

The Evidence

The annual reports of the Commission for Scheduled Caste and Schedule Tribe provide the data on the registered cases of untouchability and atrocities against the Scheduled Castes. Table 1 revealed that average number of cases registered under Anti Untouchability Act (or Human Right Act) were 480 during the 1950s, 1903 during the1960s, 3240 during the1970s, 3875 during the1980s and 1672 during the first half of the 1990s. Table 2 shows that during the nine year period between 1981-86 and 1995 -97 a total of two lakhs cases of atrocities on the SC were registered, which means on an average three thousand cases of atrocities were committed on them annually.

The break-up of the atrocities for the year 1997 shows 504 cases of murder, 3452 of grievous hurt, 384 of arson, 1002 of rape and 12149 cases of other offences. The data for the period between 1981 and 1997 showed that on an average annually about 508 SC persons were murdered, about 2343 hurt, 847 subjected to arson, 754 became victims of physical violence and about 12,000 were subjected to other offences.

Four Regional Cases

Generally, cases which are registered with the police are of a severe nature and attract public attention. A large number of cases however remain unreported. The studies based on village surveys bring out the actual magnitude of the practice of untouchability and atrocities. From the massive literature on the practice of untouchability and atrocities, four regional studies are presented here; from Karnataka (1973-74 and 1991) and Andhra Pradesh (1977) in the south, Orissa (1987-88) in the east and Gujarat (1971 and 1996) in the west.

Discrimination & Deprivation

Very few empirical studies have tried to study the phenomenon of economic discrimination. Banerjee and Knight (1991) and also Deshi and Singh (1995) have brought out the significant presence of caste and untouchability-based economic discrimination in urban job markets. Banerjee and Knight (1991) in their study of the Delhi urban job market during 1975-76 observed that "use of the standard methodology showed that there is indeed discrimination by caste. Discrimination appears to operate at least in part through traditional mechanism, with untouchables disproportionately represented in poorly-paid" dead-end jobs.

Among the regional studies considered earlier, the studies from Andhra Pradesh and Karnataka also provide evidence of economic discrimination in occupation, employment, wages and loans, and other economic spheres. The study from Andhra Pradesh (Venkateswarlu 1990) indicates that when untouchables wanted to switch over from their traditional occupation in the rural area to some other occupation, they were abused or beaten. The Karnataka study (Khan 1995) revealed that nearly 85 per cent of the respondents continue with their traditional occupation and only 15 per cent could make a switch. In the urban areas, however, 56 per cent expressed a shift from the traditional occupation. The Orissa study for 1987-88 (Tripathy 1994) observed nearly 96 per cent of respondents in one village and all the formerly untouchable respondents in the second village were discriminated against in wage payments. 28 per cent in one village and 20 per cent in another faced discrimination in the share of rent. Discrimination in interest rates changed by the moneylender was found in both villages.

We will add to these studies by looking at some complementary data, and putting some similar or related questions: How far do the traditional customary restrictions related to ownership of sources of income imposed on the low-caste untouchable continue? Has their access to agricultural land and capital in rural and urban areas improved? We have selected data on the comparative situation of the Scheduled Castes (SC) and others in rural and urban areas in the late 1980s and early 1990s. Some sources also go back to the 1960s, 1970s and early 1980s.

Lack of Access to Agricultural Land and Capital

- Untouchability in Practice 40K
- Crimes and atrocities 35K
- Occupational Pattern 35K
- Unemployment Rate 48K
- Poverty statistics 36K
- All tables are in MS Word format About three-fourths of the SCs live in rural areas, where the main sources of income are either cultivation of agricultural land, wage labour or some kind of non-farm self-employment. Access to agricultural land for cultivation and capital for undertaking non-farm self-employment is critical. In 1993-94 only one-fifth of all SC households cultivated land as (independent) self-employment workers whereas among the others (i.e. non-SC/ST) the percentage was more than twice this rate, (Table 3). The percentage of those employed in some kind of non-farm self-employment activities, which indicate access to capital, was very low among the Scheduled Castes. Taking both farm and (rural) non-farm self-employment, about one-fourth of SC household seem to be engaged in self-employment activities as compared to more than half for others, in rural area. (Thorat, 2001)

In urban areas the disparity in the access to capital is well reflected in the lower proportion of self-employed workers among the Scheduled Castes. The lower proportion of SC as self-employed in agriculture, in non-farm sector in rural area and in urban area as compared to others, revealed the continuation of lack of access ownership of agricultural land and capital. The limited access is both due to the historical legacy associated with the restrictions of caste system to require means of income by the untouchables and ongoing discrimination in land market and capital market and other related economic spheres. (Thorat, 2001)

Inadequate access to agricultural land and capital (for self-employment activities) leaves no option to SC workers except to resort to manual wage labour, consequently it leads to enormously high level of (manual) wage labour among the SCs, nearly sixty per cent as compared to only one-third for others. In urban areas also disparities in the incidence of wage labour are evident. The proportion of casual labour among the SCs is around one-third as against only 10 per cent among the others. (Thorat, 1999).

Since more than sixty per cent of the SC workers in rural areas and more than one third in urban areas depend on wage employment, their earnings are determined by the level of employment and wage rates. It seems most possible that the SC workers suffer from discrimination in employment. The unemployment rate of SCs is much higher than that of other workers and they suffer from high under-employment as compared to others in Indian society (see table 4). Higher unemployment rate of SC workers (which is twice that of others) indicates a possible existence of caste-based discrimination against SC workers in hiring. In the earlier section we presented evidence of discrimination against SCs in occupation, employment and wages.

With higher incidence of wage labour associated with high rate of under-employment the SCs would suffer from low income and consumption and a resultant greater level of poverty. This is reflected in the proportion of persons falling below a critical minimum level of consumption expenditure, what is called the poverty line (see Table 5). In 1993-94 about half of SC households were below the poverty line in rural areas as compared to only less than one-third for the general population. The poverty level among the SCs was thus high compared to others. What is striking is the variation in poverty ratio among wage labour across occupation group. The incidence of poverty was about sixty per cent among agricultural labourers, and forty per cent in non-agricultural labour. The level was relatively low for persons engaged in self-employed activities in agriculture (37.71 per cent) and in the non-agricultural sector (38.19 per cent). For each of these occupation groups, however, the proportion of SC household was much higher than their counterparts among the non-SC/ST group.

In urban areas about half of the SCs were below the poverty line in 1993-94, as compared to only one-third among the Others. Further, the incidence was astonishingly high among the casual labour as nearly two third were poor. The disparities in the level of urban poverty between the two social groups were relatively higher in the case of self-employment and regular salaried and wageworkers but less in the case of casual labour. This indicates that by the early 1990s still half of the SC population was below the poverty line both in rural and urban areas. The 1993-94 figures revealed that the SCs were at least twenty-five years behind the other group in terms of level of poverty.

This macro-level comparative account of the economic position of the formerly untouchable and upper-caste persons covering relevant economic indicators provides convincing evidence of the continuing economic inequalities associated with caste. It is thus beyond doubt that the historical impact of traditional caste-based restrictions on the ownership of property, employment and occupation are still visible in significant measure, the access of the formerly untouchables to income-earning capital assets and employment is limited, and their segregation into manual labour is overwhelmingly high. The two prime economic attributes of the caste system thus seem to be present in sizeable measure, even today.

Decisive Reasons for Continuity

In the end the question is: why do the higher castes continue to practice untouchability, and discrimination in social, cultural, religious, political and economic spheres. And why do they resort to physical and other violence when the untouchables try to gain lawful access to human rights and equal participation in social, political, cultural, religious and economic sphere of community life? The reasons for widespread practice of untouchability, discrimination and atrocities as well as violent reaction by the higher castes are to be found in their continuing belief and faith in the sanctity of the institution of caste and in untouchability. The traditional Hindu social order continues to govern the thought process and behavior of the large majority of Hindus in rural areas. The provisions in the Constitution and law are secular and equal but the customary rules of the caste system and the institution of untouchability are based on the principle of inequality in social, economic, cultural and religious sphere. This obviously brings a conflict between what is contained in the constitution and law, and what is contained in the traditional customary rules, norm, and values of the caste system and untouchability. People continued to follow the latter because it provides immense privilege and serves their social, political and economic interests. And when the dalits try to get equal access and 'assert' their rights, it often invites the wrath of higher caste persons in the form of atrocities and physical violence. About the reasons for the atrocities on the SC/ST the Report of the Commission of the SC/ST 998 observed,

"Some of the major causes of atrocities and other offences against Scheduled Castes and Scheduled Tribes are related to issues of land and property, access to water, wage payments, indebtedness and bonded or forced labour. Issues of human dignity, including compulsion to perform distasteful tasks traditionally forced on Scheduled Castes, and molestation and exploitation of dalit women are also involved. Caste related tension is exacerbated by economic factors, which contribute to violence. It is the assertion of their rights, be they economic, social or political, by the Scheduled Castes and Scheduled Tribes and their development, which often invite the wrath of the vested interests. Disputes during elections, animosity due to reservation, jealousy due to increasing economic prosperity, violence related to the process of taking possession and retaining Government allotted land, tension due to refusal of SCs to perform tasks such as disposal of dead cattle or cutting umbilical cord, are manifestations of the resentment of the high caste against increasing awareness among Scheduled Castes, assertion and prosperity among the SCs. Like land, water is another sensitive issue. Accessibility of drinking water and water for irrigation and disposal of water removed from water logged areas become issues that can trigger off atrocities on SCs. Castiest favor during religious and social ceremonies, disputes arising during sowing and harvesting operations, and removal of crops from the granary after harvesting, have also been known to cause tension. Increasing awareness and empowerment of SCs, manifested in resistance to suppression, also result in clashes".

The official evidence and the regional studies based on primary data revealed that in rural India in several spheres, if not in all spheres, the social behavior of high caste Hindus is still governed by the norms and codes of the traditional caste system, although there are changes in some spheres of social relations. The settlements of the untouchables in rural areas are away from the high-caste locality, endogamy (which is the backbone of the caste system) continues, entries for the untouchables in private houses and temples in rural areas are limited, and common sharing of tea and food is also extremely limited. Pressures and restrictions on voting and political participation also prevail. The restriction on the change of occupation and discrimination in employment, wage rate, share of rent, rate of interest charged and in sale of items from shops owned by the untouchables is still observed in some degree in the rural areas, where three-fourths of the untouchables live.

This goes to shows that the enforcement and practice of universal human rights in society is not conditioned by the formal supportive legal framework (such as the Constitution and other laws) alone. Often, cultural, social, religious and economics notions make the enforcement and practice of human rights difficult. Non-formal institutions; social, religious as well as economic, involve a framework of social behavior of their own, which may not be in consonance with the principles enunciated by the United Nations, or the Constitution of a nation in which case different sets of values may result in conflicts. It implies that unless inequalities imbedded in the social, economics and cultural structure of the Hindu society are addressed, the legal measures will make little difference in providing access to human rights to the dalits in India.

Sukhadev Thorat
October - November 2002

Sukhadev Thorat is Professor, Center for the Study of Regional Development, School of Social Sciences, Jawaharlal Nehru University, New Delhi.


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