X. FAILURE TO MEET DOMESTIC AND INTERNATIONAL: LEGAL OBLIGATIONS TO PROTECT DALITS
The practice of “untouchability,” other caste-based discrimination, violence against Dalit men, women, and children, and other abuses documented in this report are in violation of numerous domestic and international laws. A body of international human rights conventions, domestic legislation, and constitutional provisions collectively impose on the government of India a duty to guarantee certain basic rights to the Dalit population and to punish those who engage in caste-based violence and discrimination.
Other chapters of this report describe the pattern of state complicity in attacks on Dalit community members. This chapter outlines the government’s legal obligations and the manner in which state complicity extends to the non-registration of cases against caste Hindus, including the government’s failure to implement the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A brief description of the government’s two-pronged strategy to improve the socio-economic status of scheduled castes and to provide them with legal protection in the form of social welfare legislation is also provided. Like the Atrocities Act, the strategy has been undermined by a lack of political will to ensure its implementation. The government of India has failed to provide Dalits with the most basic of constitutional guarantees described below.
India’s Obligations under Domestic Law
The Constitution of India proclaims the decision of the Constituent Assembly (which framed the constitution) to provide social, political, and economic justice for all. To this end the constitution has several provisions to protect scheduled castes and to improve their position. The constitution affects social justice in two ways. First, it confers rights on men and women alike, through “fundamental rights” which can be enforced by the courts. Second, it directs the states to implement “directive principles of state policy.” Although these are not enforceable in Indian courts, they are declared to be fundamental in the governance of the country and as such have moral and political value.
Scheduled castes and the constitution
Article 17 of the constitution abolishes the practice of “untouchability” and punishes the enforcement of any disability arising out of the practice. Article 21 guarantees the right to life and liberty. The Indian Supreme Court has interpreted this right to include the right to be free from degrading and inhuman treatment, the right to integrity and dignity of the person, and the right to speedyjustice.
52 When read with Article 39A on equal justice and free legal aid, Article 21 also encompasses the right to legal aid for those faced with imprisonment and those too poor to
afford counsel.
53
Article 23 prohibits traffic in human beings and other similar forms of forced labor. Since the majority of bonded laborers belong to scheduled castes, Article 23 is especially significant for them.
54 Similarly, Article 24 provides that no child under the age of fourteen shall work in any factory or mine or engage in any hazardous employment. Again a majority of children engaged in bonded labor in such hazardous industries are scheduled caste members. Article 45 charges that the state shall endeavor to provide free and compulsory education for all children until they reach the age of fourteen, while Article 43 calls on the state to secure to all workers, agricultural, industrial or otherwise, a living wage and conditions of work ensuring a decent standard of life.
Article 46 comprises both development and regulatory aspects and stipulates that: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and forms of exploitation.” As the article falls under the category of directive principles and not fundamental rights, it cannot be enforced by the state’s courts. Article 15(4) empowers the state to make any special provisions for the advancement of any socially and educationally backward classes of citizens, or for scheduled castes and scheduled tribes. This particular provision was incorporated into the constitution through the Constitution (First Amendment) Act, 1951 and has enabled several states to reserve seats for scheduled castes and scheduled tribes in educational institutions, including technical, engineering, and medical colleges. It has also paved the way for reservations in police forces.
Article 330 provides reservations for seats for scheduled castes and scheduled tribes in the Lok Sabha (the House of the People), while Article 332 provides for reservations in the state legislative assemblies. Article 334 originally stipulated that the above two provisions would cease to have effect after a period of ten years from the commencement of the constitution. This article has sincebeen amended four times, extending the period by ten years on each occasion. The provision is now set to expire in January 2000.
Through Article 16(4) the state is empowered to make “any provision for the 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.” The claims of scheduled castes and scheduled tribes, as per Article 335, shall also be taken into consideration, consistent with maintaining efficiency of administration, in the making of appointments services and posts in connection with the union or of a state.
In addition to constitutional provisions, the government of India has pursued a two-pronged approach to narrowing the gap between the socio-economic status of the scheduled caste population and the national average: one prong involves regulatory measures which ensure that the various provisions to protect their rights and interests are adequately implemented, enforced and monitored; the second focuses on increasing the self-sufficiency of the scheduled caste population through financial assistance for self-employment activities through development programs to increase education and skills.
55
The protective component of this strategy includes the enforcement of those legal provisions that make up the Protection of Civil Rights Act, 1955, and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989; of other state and central government laws; and of “positive discrimination” through reservations in the arenas of government employment and higher education. These protective measures are monitored by the National Commission for Scheduled Castes and Scheduled Tribes. The development measures for the educational, social, and economic upliftment of scheduled castes are administered by the Ministry of Welfare through the state governments.
56
The National Commission for Scheduled Castes and Scheduled Tribes
The National Commission for Scheduled Castes and Scheduled Tribes is a body set up pursuant to Article 338 of the Indian constitution. It has been entrusted with the responsibility of ensuring that the safeguards and protections that have been given to scheduled castes and tribes are implemented. As part of the National Commission, the Commission on Atrocities Against Scheduled Castes andScheduled Tribes oversees implementation of the Prevention of Atrocities Act, 1989, and the Protection of Civil Rights Act, 1955, though does not have a statutory responsibility to do so. The commission both receives complaints and proactively investigates matters that come to its attention through news reports or by any other means. Under the constitution the commission has the powers of a civil court and can call on anyone for evidence to ensure that the laws are being implemented. The commission lacks the powers of a criminal court, however, and therefore cannot enforce its findings.
57
The Protection of Civil Rights Act, 1955
With an eye to eradicating pervasive discrimination practiced against scheduled-caste members, the central government enacted the Protection of Civil Rights Act, 1955 (PCR Act) to enforce the abolition of “untouchability” under Article 17 of the constitution. The PCR Act punishes offenses that amount to the observance of “untouchability.” These include,
inter alia, prohibiting entry into places of worship, denying access to shops and other public places, denying access to any water supply, prohibiting entry into hospitals, refusing to sell goods or render services, and insulting someone on the basis of his or her caste.
58
In 1973 the Protection of Civil Rights Cell was established to respond to a lack of convictions under the PCR Act.
59 According T. K. Chaudary, the inspector general of police for the PCR cell in Maharashtra from 1992 to 1996, and current Joint Commissioner of Police, Mumbai (Bombay) Police:
Until 1973 there was no conviction. It was all at the whims and fancies of police officers. They only took action if the person belonged to the right caste. So in order to streamline the act, the cell came into place. From 1975 onwards they played a coordinating role. They had no power of their own but made sure some cases were registered and the some complaints were heard; still there were hardly any convictions... witnesses turned hostile.
60
Chaudary added, “Society as a whole never accepted the PCR Act. No one ever thought that name-calling wouldn’t be okay. Ill-treatment was very common.”
61 The act was also vulnerable to abuse. “It was easy to make an allegation that someone was called by his or her caste name.”
62
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
The greatest deficiency of the Protection of Civil Rights Act was the fact that abuses against Dalits were not limited to name-calling or denial of entry into public spaces: violence was a defining characteristic of the abuse. Thirty-four years after the introduction of the PCR Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was enacted to bring these other forms of abuse to an end. “In the Atrocities Act_ the complainant is given more weight... There are also stringent provisions against the police for negligence.”
63
The promulgation of the act itself was an acknowledgment by the central government that abuses, in their most dehumanizing form, continue to take placeagainst Dalits throughout the country. The Tamil Nadu nodal (implementation) officer for the Atrocities Act explained to Human Rights Watch:
The Atrocities Act is very stringent. It is needed to eradicate the practice, not just control it. It is the second phase of the Protection of Civil Rights Act which is very soft. The 1989 [Atrocities] Act is grounded in the understanding that scheduled castes are being subjected to violence, not just the practice of “untouchability.” There was a long period of dialogue before its enactment. After forty years of India, people began to acknowledge that violence continued to be perpetrated and it needed to be stopped. The act presumes that if a non-scheduled-caste member harms a scheduled-caste member then it is because of the culpable mind of “untouchability” [a belief in the inferiority of lower castes]. They don't have to utter the caste name in the 1989 act; any humiliation is an offense.
64
A list of offenses under the act provides a glimpse into the forms that such violence can take, several of which have been documented in this report. Section 3(1) stipulates that the following acts, when committed by a person who is not a member of a scheduled caste or a scheduled tribe, are atrocities and thereby punishable by a term of six months to five years with a fine.
· Forcing a member of a Scheduled Caste or Scheduled Tribe to drink or eat any inedible or obnoxious substance (Section 3(1)(i));
· Acting with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood (Section 3(1)(ii));
· Forcibly removing clothes from the person of a member of a Scheduled Caste or Scheduled Tribe, or parading him naked or with painted face orbody, or committing any similar act which is derogatory to human dignity (Section 3(1)(iii));
· Wrongfully occupying or cultivating any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or Scheduled Tribe, or getting the land allotted to him transferred (Section (3)(1)(iv));
· Wrongfully dispossessing a member of a Scheduled Caste or Scheduled Tribe from his land or premises, or interfering with the enjoyment of his rights over any land, premises, or water (Section 3(1)(v));
· Compelling or enticing a member of a Scheduled Caste or Scheduled Tribe to do “beggar” or other similar forms of forced or bonded labour, other than any compulsory service for public purposes imposed by the Government (Section (3)(1)(vi));
· Forcing or intimidating a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote [for] a particular candidate or to vote in a manner other than that provided by law (Section (3)(1)(vii));
· Corrupting or fouling the water of any spring, reservoir, or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used (Section (3)(1(xiii));
· Denying a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructing such members so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to (Section 3(1)(xiv));
· Forcing or causing a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village, or other place of residence (Section 3(1)(xv)).
- The act also punishes public servants for committing any of the enumerated offenses. Specific offenses are also designed to protect Dalit and tribal women. Specifically, Sections 3(1)(xi) and 3(1)(xii) criminalize the assault or use of force on any woman belonging to a scheduled caste or scheduled tribe, “with theintent to dishonour or outrage her modesty,” and the use of a position of dominance to exploit a scheduled caste or scheduled tribe woman sexually.
Section 3(2) of the act prohibits, inter alia, the fabrication of false evidence in cases against members of scheduled castes or scheduled tribes and defines punishments for public servants who commit any of the offenses enumerated in Section 3. In addition to providing for stricter punishments for various offenses, the act also imposes certain positive duties on state and central governments to ensure proper implementation of the act.65 Many of these duties are listed under Section 21 which, among other things, provides that the central government shall, every year, send to both houses of parliament a report on the measures taken by the center and the states in pursuance of the provisions of the act.
