Wednesday, August 24, 2011

The Concept of Aarakshan & Dalit Rights -Part-II

The Concept of Aarakshan & Dalit Rights -Part-II

The Manu Classification of Varna : Brahmin-the priests &Vedic scholars;Kshatriya, warriors and nobility;Vaisya, farmers, traders and artisans; and Shudra, menial labour &servants  for upper caste ,lowest  in the caste system. They were called as "untouchables."

Who are dalits ?

Dalit, also called Outcaste, is a self-designation for a group of people traditionally regarded as Untouchables[1]. Manu described them as Shudra[Chandala &Melanchas] and lowest rated caste among four caste  viz.Brahmin, Kshatriya , Vaishya, Shudra.
The father of nation Mahatma Gandhi once describe Dalits as ‘Harijan[children of God] The constitution of India ,which was drafted by drafting committee under chairmanship of Dalit Intellectual Dr. Bhim Rao Ambedkar recognizes them as ‘Scheduled Castes’ [S.C] and ‘Scheduled Tribes’[S.T],even during British rule they were called as S.C &S.T under Act of 1935.
170 million Dalit people, formerly known as “untouchables,” are at the bottom of the Hindu caste system. They are victims of the most extreme form of caste discrimination. It is, in many ways, analogous to racism. By virtue of their birth into a Dalit family and community, they are condemned forever to a life of social stigma, exclusion and victimization [2]
Human Rights Watch has condemned India’s abuse of its Dalit people as a “hidden apartheid,” comparable to the institutional discrimination of pre-democratic South Africa[3]
There are hundreds of cases reported from India about discrimination and violence against Dalits. The most cases, offenders go unpunished, because of weak laws and weak enforcement mechanism. The conviction rate in S.C and S.T atrocities cases negligent [ 3 %or below 3 %],despite the enactment of special laws and formation Special courts.

On December 27, 2006, for the first time in history of India, Prime Minister of India  officially admitted there is discrimination of Dalits in India, Dr.Man Mohan Singh openly admitted and described “untouchability” as a “blot on humanity” adding that “even after 60 years of constitutional and legal protection and state support, there is still social discrimination against Dalits in many parts of our country.”

Famous Dalit uprising in India:
  1. Halba rebellion (1774–79)
  2. Bhopalpatnam Struggle (1795)
  3. Bhil rebellion (1822–1857)
  4. Paralkot rebellion (1825)
  5. Tarapur rebellion (1842–54)
  6. Maria rebellion (1842–63)
  7. First Freedom Struggle (1856–57)
  8. Bhil rebellion, begun by Tantya Tope in Banswara (1858)
  9. Koi revolt (1859)
  10. Gond rebellion, begun by Ramji Gond in Adilabad (1860)
  11. Muria rebellion (1876)
  12. Rani rebellion (1878–82)
  13. Bhumkal (1910)

How caste can be categorized as  S.C &S.T & the Concept of Affirmative Action by State :

The Indian Constitution 1950, Article 366 (24) defines Scheduled Castes and Article 341 and identifies the process through which such groups will be identified. The provisions have been made for Scheduled Tribes in Article 366(25) and Article 342 respectively.

The Categorization of caste as S.C &S.T differs state to state, there is plethora of litigation on categorization and number of commissions was formed by state and central government to recognize particular caste as S.C and S.T. A caste can be and quite often is a social class in India. If it is backward socially, it would be backward class for the purpose of Article 16(4) Among non-Hindus, there are several occupational groups, sects and denominations, which, for historical reasons, aresocially backward. They too represent backward social collectives for the purpose of Article 16(4)[ Indra Sawhney case ]

1902, for the first time, officially ,the state provided reservation to unprivileged sections of society by Chatrapati Sahuji Maharaj, Maharaja of Kolhapur in Maharashtra by introducing reservation in favour of backward classes to eradicate poverty from amongst them and to give them their due share in the State administration.
Hunter Committee was appointed  headed by William Wilson Hunter[ he was Collector of  Birbhum  of Bengal];Mahatma Jyotirao Phule made a demand of free and compulsory education for all along with proportionate reservation/representation in government jobs.
In 1908, The Reservations were introduced in favour of a number of castes and communities that had little share in the administration by the British.
In 1921, Madras Presidency introduced Communal G .O in which reservation of 44 per cent for non-Brahmins, 16 per cent for Brahmins, 16 per cent for Muslims, 16 per cent for Anglo-Indians/ Christians and eight per cent for Scheduled Castes.

The Communal Award was announced by the British Prime Minister Ramsay Macdonald on 4 August 1932 to grant separate electorates to minority communities in India, including Muslims, Sikhs, and Dalits (then known as the Depressed Classes or Untouchables) in India.Mahatma Gandhi objected to the provision of separate electorates for the Scheduled (formerly “untouchable”) Castes, which in his view separated them from the whole Hindu community. Though in prison, Gandhi announced a fast unto death, which he began on September 18,1932.
The Indian National Congress [INC]passed resolution called The Poona Pact[4] to allocate separate electoral constituencies for depressed classes. An agreement between the lower caste Untouchables lead by Dr.B.R Ambedkar and the upper Caste lead by Mahatma Gandhi on 24 September 1932 at  Yerawada Jail in Pune 
Some provisions was made in Government of India Act 1935 and in 1942,Dr. B.R Ambedkar established the All India Depressed Classes federation to support the advancement of the scheduled castes. He also demanded reservations for the Scheduled castes in government services and education.
After  independence ,the provisions was made in the Articles 16, 335, 338, 340, 341 & 342 of the Indian Constitution ,1950 related to reservation, protection and safeguards, in public employment in respect of the persons belonging to the SCs/STs and other backward classes.
The Reasonable classification was upheld by Hon'ble Supreme Court of India in Yusuf V. State of Bombay, AIR.1954 S.C. 321

The Constitutional protection provided to S.C &S.T :
Constitution of India, 1950: Parts III, IV, IX, IX- A, Fifth and Sixth Schedule of the Constitution reinforce these arrangements.

  1. Right to Equality: States shall not deny any person equality before law or the equal protection of laws within the territory of India. [Article 14] The concept of equality is operationalised  in Article 15 :The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to - (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
  2. Prohibition against discrimination[Article 15] &State to make special provisions for advancement of any socially and economically backward classes or citizens and for Scheduled Castes/ Scheduled Tribes[Article 15(4)]
  3. Equality of opportunity [Article 16] any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. It is through this provision only the reservations in appointments & promotions for S. C & S .T and for OBCs in the matter of recruitment have been made.
  4. The reservation in the matter of promotion has been extended to Scheduled Castes and Scheduled Tribes.[Article 16 a]
  5. Permit backlog vacancies as a separate category in any year for determining the ceiling of 50% reservation on total number of vacancies that year [Article 16 (4) (b)]
  6. The Untouchability is abolished[Article 17]
  7. Prohibition of traffic in human beings and ‘begar’ and forced labour[Article 23] religious Institutions of a public character shall be open to all classes and sectionsof Hindus.
  8. Prohibition of child labour below the age of 14 years[Article 24]
  9. Right to conserve culture ,distinct language ,script [Article 29[1]]
  10. Right to Constitutional Remedies [Article 32]
  11. Equal Justice and free legal aid [Article 39 A]
  12. Compulsory Education to children below the age of 14 yrs. [Article 45]
  13. Free and State shall promote with special care the educational and economic interests of weaker sections[Article 46]
  14. Specific States there shall be a Minister in charge of tribal welfare who may, in addition be in charge of welfare of Scheduled Castes, Backward Classes or any other work[ Article 164(1) ]
  15. Provisions have also been made for administration of tribal areas in the 6th Schedule[Article 244]
  16. State has been empowered to make any relaxation for qualifying mark[Article 335]  82nd Amendment Act, 2000, amended the Article 335,after S.Vinod Kumar Vs. U.O.I case ,which held lowering qualifying marks is not permissible .
  17. Article 330 of Constitution of India 1950 provides for reservation of seats for SC’s and ST’s in the Lok Sabha .
  18. Article 332 of Constitution of India 1950 provides for reservation in the state legislatures in proportion to the population in the state.
  19. Article 338 of Constitution of India, provides for formation of special commission to safe guard and protects the rights of S.C&S.T community.
  20. Some seats are reserved to S.C&S.T in the states [Article 243 D]
  21. The seats are reserved for S.T&S.T in every Municipality in a [Article 243 T]

  1. Grant-in aid from Consolidated Funds of India schemes of development and for promoting the welfare of Scheduled Tribes in the State and Similar provision exists for such special grants for the 6th scheduled area[Article 275 (1)]

  1. The Governor can direct that a particular law or notification passed by Parliament or Legislative Assembly shall not apply to the scheduled area or any part thereof or shall apply subject to certain exceptions and modifications. Governor is also authorized to make regulation for peace and good government in the scheduled areas of the State[Article 244(1]

  1. Indra Sawhney’ case: Supreme Court of India held that reservation in promotion is unconstitutional but permitted the reservation, for Scheduled Castes and Scheduled Tribes to continue for a period of five years(From 16.11.92)

Special Laws for S.C &S.T :
  1. The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
This act was passed with objective of providing of separate courts for offences relating to atrocities on S.C&S.T by forward caste community. The Offences of atrocities under act include [a]causing injury [b]even insult to any SC or ST by forcibly removing his clothes or to parade him naked. [c]dump excreta waste matter, carcass or any other obnoxious substance in his premises or neighborhood[d] many other offences causing insult or injury deliberately, the act describes details of punishment for such offences and  enhanced punishment for subsequent conviction . As per act, the Special Courts can impose punishment which will be not less than one year.
The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 were framed.
2.The Protection of Civil Rights Act, 1955[earlier Known as Untouchability Act]
An Act to prescribe punishment for the (Preaching and Practice of “Untouchability”) for the enforcement of any disability arising there from and for matters connected therewith.The practice of Untouchability is offence on following grounds: [a] Insulting a member of S.C &S.T[b] Practicing Untouchability [c] Justifying the Untouchability on historical,  religious or Philosophical grounds. The Section- 2 of act defines Civil Rights  “Civil Rights” means any right accruing to a person by reason of the abolition of “untouchability” by article 17 of the Constitution; The Section 7- Punishment for other offences arising out of" untouchability" Punishment is imposed on persons who enforces disability on all spheres religion,  society, public space, institutions such as hospitals and educational establishments.  Social boycott of untouchables was also penalized

  1. DevDasi System
The laws were made to prevent sexual exploitation &Servitude of women belonging to weaker sections in name of Dev Dasi [servant of God& women dedicated to temple] , many states like viz  A.P, enacted special  act “Andhra Pradesh Devdasi (Prohibition of Dedication) Act, 1988” and similarly Karnataka is enacted special law for curbing practice of Dev Dasi system

  1. Human Rights Act, 1993
An objective of act is to provide for the constitution of a National Human Rights Commission. State Human Rights Commission in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto.
Other important enactments
  • Bonded. Labour System (Abolition) Act, 1976: The bonded labour is outcome of feudal system like Zamindari system and social inequalities prevailing due to prevalence of caste system. This act addresses the issue of exploitation of  labour.
  • Manual scavenging is banned under The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
  • Minimum wages Act 1948 : This act provides for fixation and enforcement of minimum wages in respect of scheduled employment
Institutional protection of S.C &S.T
1.National Commission for S.C &S.T [Art 338]: The Commission has power to investigate and monitor all matters relating to the safeguards provided for the SCs/ STs under this Constitutional or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of SCs/ STs;
A SC/ST employee can write directly to the Commission on matters relating to appointments, confirmation, promotion and grant of other concessions available to SCs/STs, without any prior permission from the concerned administrative Ministries/Departments. [MHA O.M.No17016/1/76-SCT(i) dt.8.4.1976]
Article 338 (9) of Constitution lays down that the Union and every State Government shall consult the Commission of all major policy matters affecting SCs/STs.
2.National Human Rights Commission  formed under Human Rights Act, 1993
3.National Commission for Women  formed under National Commission for Women Act, 1990
4.National Commission for Safai Karamcharis is formed under  National Commission for Safai Karamcharis Act, 1993
5.State Commission for S.C&S.T
6.State Human rights Commission& State Women Commissions
Important International  Human Rights Conventions &Dalits
  1. Universal Declaration of Human Rights is international binding human rights law and India is signatory to said declaration, 1948.
  2. International Covenant on Civil and Political Rights 1966
  3. International Covenant on Economic, Social and Cultural Rights 1966.
  4. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified by India in 1968. It guarantees rights of non-discrimination on the basis of “race, colour, descent, or national or ethnic origin.
  5. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1981
  6. United Nations Convention Against Torture[1987]
  7. Convention on Rights of the Child 1989
  8. Convention on the Prevention and Punishment of the Crime of Genocide[1951]
  9. International Labour Conventions
Political empowerment:
Even after 64 yrs of Indian independence and the enactment of the constitution of India in 1950 ,which was drafted under chairman ship of Dalit intellectual  Dr. Bhim Rao Ambedkar and affirmative action by founding fathers by providing reservation in jobs and legislation ,ironically , it is fact that still Dalits are socially,economically,political, educational backward in the country. Even today, the un-touchability and discrimination is rampant in rural areas of the country.
The Dalit still faces discrimination at all levels and all spheres of life. They are regarded as merely vote bank by political parties; it is well established fact that most mainstream political parties are dominated by forward caste people. Even after First Dalit women became Chief Minister of Uttar Pradesh Ms.Mayawati, U.P is unable to achieve objectives of social justice as enshrined in the constitution of India, in all spheres of life, her party came to power by using a pro-Dalit sentiment to garner votes, she has only succeeded in erecting her own statues at cost state exchequer.

Unless, there is a revolutionary changes in the society and change of mindset of people,Dalit still faces discrimination and human rights abuses in the hands of forward &affluent caste.
References &Further Reading :
  1. Wikimedia
  5. P.M Bakshi ;The Constitution of India ,Universal Law Publishing Co  Pvt Ltd ,2010
  6. Indra Sawhney Vs UOI Writ Petition(Civil) No.930 of 1990

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