Human Rights Mechanism on Untouchability and Caste-based Discrimination against Dalits: An Analysis of Ground Realities Narender Nagarwal Narender Nagarwal, Assistant Professor (Law), Department of Law, University of North Bengal, Darjeeling (West Bengal). The views expressed herein are personal in nature. I. Prologue Although the Constitution of India abolished the untouchability and the caste-based discrimination against Dalits The word “Dalit” originated from Marathi language of western India and popularized by Dr. B R Ambedkar, the term is used for self-identification. “Dalit” means “broken up”, “ground to pieces”, or “oppressed”. through its various provisions in 1950, but the Dalits still suffer widespread caste-based discrimination and atrocities in different forms. It is due to the upper caste psyche of our so called “modern Hindu social system” that still not overcomes from its biases, prejudices and hostility against Dalits. The Indian society still believes in the caste system thus treats Dalits as untouchables as they are not beneath of the four main Hindu caste systems (varnas) but the outsider of the varnas system. Sukhdeo Thorat, “The Hindu Social System & Human Rights of Dalits”, Critical Quest Pub, 2004 New Delhi, p 4-5 Associated historically (and often today) with work deemed unclean, Dalits were seen as permanently and hereditary defiled. The Hindus Indian Constitution, Article 25 (2) (b), Explanation II, The reference to Hindus shall construed as including a reference to person professing the Sikh, Jaina and Buddhist religion. are broadly divided into two groups, namely, high caste Hindus- descendants of the Aryan invaders, known as Brahmins, Kshatriyas, Vaishyas- and low caste Hindus, the original inhabitants of India (Shudras, Dalits, Other Backward Castes and Tribesmen). Among the low caste Hindus, Dalits are 15.05 percent, Backward Castes (including Shudra) 43.70 percent and Tribesmen 7.51 percent. Today untouchables are a diverse group living in India and comprising about 16 percent of the population of the country. Annual Report of National Commission for Scheduled Castes, 2009, Ministry of Social Justice and Empowerment, Govt. of India, New Delhi. India has shameless record of discrimination and other caste based atrocities against Dalits. Basically, the caste based atrocities have been in practice aiming to suppress the voice of the highly down trodden people who are constitutionally protected whether their status is SC or ST. The discrimination, atrocities and inhuman acts done against Dalits should be seen as a reminder from the upper caste mighty people that you can’t raise your voice against injustice and if so will make you silence and sure that they remain docile. The present discourse on the issue of how existing legal mechanism are competent against the prevention of Dalit atrocities is meaningless as law is there but never implemented sincerely. Although the untouchability and discrimination removed through the Constitutional provisions but it is persists in different forms and situations and there is open violation of the Constitutional norms protecting the Dalit’s rights. Further the existing legislative framework on prohibition of caste-based discrimination and atrocities inherently weak. The violence, exclusion and humiliation suffered by the Dalits were not treated as human rights issues by the state and its agencies. Despite decades of activism by Dalit organization and human rights activists, recognition of untouchability as serious offence remained minimal. The country’s apex national human rights watch body i.e. NHRC and different agencies of the government did not recognize caste based discrimination as a serious human rights violation, and major human rights NGO had not taken up the issue. The law enforcement personnel often refuse to document, investigate and respond adequately to Dalit complaint. Upper caste members often threaten and assault Dalits who dare to protest against the atrocities. In the present scenario there is a need of strengthening the existing law protecting the Dalits rights. Zoya Hasan, “Politics of Inclusion-Caste, Minorities and Affirmative Action”, OUP, New Delhi, 2009, p. 42 II. Indian Human Rights Law for Dalits Historically, the Dalits are most oppressed class in Indian society and continue to suffer from untouchability, discrimination and exclusion even in modern times. It is to be noted that it was the British government who initially recognized that Dalits should be given special attention by the government. The British government in 1935 officially announced Dalits as being “highly unprivileged castes” and eligible for utmost attention by the State due to their poor conditions and same to be improved due to social and economic marginalization by the “advantaged castes” and refer them as “Scheduled Castes”. The category SCs came into being through the enactment of Government of India Act 1935, whereby a conglomerate of castes whose defining feature was untouchability were identified and placed in a schedule in order to render them eligible for certain benefits. Caste was the primary basis of designation of SCs. For details please see, Sukhdeo Thorat, “The Hindu Social System and Human Rights of Dalits”, Critical Quest , New Delhi 2004, p. 6 There are provisions in Indian laws which offer protections for the Dalit community against both state and private persecutors. Article 17 of the Indian Constitution officially prohibit the practice of untouchability and put it in a punishable offence category. Article 14 requires the State to grant equal protection of the laws to any person within the territory of India and Article 15 prohibits discrimination based on religion, caste, gender or place of birth and also explicitly states that no person shall be denied “access to shops, public restaurants, hotel and places of public entertainment” or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the State funds or dedicated to use of the general public. Pandey, JN, “Constitutional Law of India”, Central Law Agency, Allahabad, 2010 pp. 112 The Constitution also states that “the state shall not discriminate against any citizen on the ground only of religion, race, caste, place of birth of any form”. Article 46 of Directive Principles it adds that “The state shall promote with special care the educational and economic interest of the SC/ST people and shall protect them from social injustice and all form of exploitation”. Several others areas of India’s domestic legislative framework theoretically both protects Dalits from caste discrimination and help to promote the socio-economic status of Dalits. For instance The Schedule Caste and Schedule Tribes Prevention of Atrocities Act 1989 (POA) also provides a wide range of protection for Dalits. This law strongly prohibits and any inhuman treatment to the Dalits or any sort of systematic victimization like bonded labour, naked paraded etc. The 1989 Act also protects Dalits from false lawsuit, sexual exploitation and interference with their voting and property rights. The 1989 Act also requires the states to set up Special Courts to adjudicate offences against SC/ST community. In addition the Act also provides punishment for public servant who fails to enforce the protections set forth in the Act. For details, please see The The Schedule Caste and Schedule Tribes Prevention of Atrocities Act 1989 III. Indian Human Rights Law-The Flip Side Undoubtedly, The Prevention of Atrocities Act (POA) is a powerful and precise weapon on paper, in practice the Act has suffered from a near-complete failure in implementation. Ironically, the primary obstacles to implementation are intended to be the primary enforcers of the Act—the lowest rungs of the police and bureaucracy that form the primary node of interaction between state and society in the rural areas. Policemen have displayed a consistent unwillingness to register offenses under the act. This reluctance stems partially from ignorance. According to a 1999 study, nearly a quarter of those government officials charged with enforcing the Act are unaware of its existence. In most cases, unwillingness to file a First Information Report (FIR) under the Act comes from caste-bias. Upper caste policemen are reluctant to file cases against fellow caste-members because of the severity of the penalties imposed by the Act; most offenses are non-bailable and carry minimum punishments of five years imprisonment. Hard work by human rights defenders has slowly begun to decrease this problem. Nevertheless, the staggering scope of the problem demands government intervention before cases can be properly registered under the Act. Human Rights Watch, Broken People: Caste Violence against India’s Untouchables (1999). A bigger obstacle faces victims who actually manage to lodge a complaint. Failure to follow through with cases is alarmingly apparent at the lowest echelons of the judicial system. The statistics speak for themselves: out of 147,000 POA cases pending in the courts in 1998, only 31, 011 were brought to trial. Such delay is endemic to the Indian judicial system. Although the POA mandated the creation of Special Courts precisely to circumvent this problem, only two states have created separate Special Courts in accordance with the law. In other states, existing sessions courts have been designated Special Courts, while still being asked to process their usual caseloads. Since many different Acts require the creation of Special Courts, such sessions courts are often overloaded with a number of different kinds of “priority” cases, virtually guaranteeing that none of these cases receive the attention they are mandated to receive. See, National Human Rights Commission, Central and State Authorities Urged to Prevent Atrocities against SCs: NHRC Releases Report on Atrocities against SCs, available at http://www.nhrc.nic.in/disparchives.asp Even if cases make it to trial, the POA also suffers from abysmal rates of conviction. Out of the 31,011 cases tried under the POA in 1998, only a paltry 1,677 instances or 5.4% resulted in a conviction and 29,334 ended in acquittal. In 2013, total crimes against SC/ST were 39408 registered compare to 33655 in 2012. The crime rate against SC/ST women has also been increased and Madhya Pradesh is worst after Andhra Pradesh, Haryana, Rajasthan and Gujarat See, “Crime in India” Annual Report of 2013 released by National Crime Record Bureau, Ministry of Home Affairs, Chapter 16, p. 105-110 The long wait also results in many plaintiffs losing interest. Judicial bias against Dalits is rampant and unchecked, and court decisions frequently bear the mark of such bias. Besides these the other main deficiencies in the Act is Section 14(2), which merely requires the State governments to specify for each district a Sessions Court to be a special court to try atrocities, contradicting the very purpose "of providing for a speedy trial". Merely calling an existing court a special court cannot speed up a trial. The law ought to have provided for a special court in each district exclusively to try cases of atrocities, on a day-to-day basis, with corresponding provisions for an exclusive special public prosecutor and a special Investigating Officer. This lacuna lays the foundation for a situation of crime without punishment. Among the other major deficiencies in the Act are omission of social and economic boycott as a crime, non-provision of death penalty as in the Indian Penal Code, non-availability of protection for the victims by way of the externment of possible perpetrators, and the failure to cover converts to Christianity (Dalit Christians). Human Rights Watch Report on Dalit “The Broken People” visit http://www.hrw.org/asia The government has also established regulatory body in order to ensure proper implementation of welfare scheme for Dalits. 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 and Scheduled 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. In the socio-economic context, the National Commission for Schedule Castes (NCSC) also has the responsibility of ensuring that scheduled caste development is taking place; it constantly monitors and reviews with state governments and ministries the implementation of their programs and policies IV. International Human Rights Mechanism-Its Application and Ground Realities International human rights mechanism extended also address the condition of Dalits of India. Several provisions of international law deals with crucial issues of discrimination and state sponsored violence against vulnerable communities. These international provisions establish obligation for India to meet in terms of securing Dalits human rights. India being a founding member state of United Nations, bound to the provisions enumerated in the Universal Declaration of Human Rights 1948 (UDHR). The first two article of the UDHR state that “all human being are born free and equal in dignity and rights” and that the human rights protected in the UDHR belong to everyone “without distinction of any kind, such as a race, color, sex, language, religion or political opinion”. Article 5 of the UDHR state about the right to be free from torture or cruel, inhuman and degrading treatment or punishment. Article 7 says that all human being are eligible to avail the right to effective remedy for the violation of fundamental rights. If we see the datas of violence against Dalits, it revealed that India has failed to protect Dalits against discrimination, degradation and violence; hence India is violating its obligation under the UDHR. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217 (III), UN GAOR, 3rd Sess. (Resolution pt. 1) at 71, UN Doc. A/810 (1948). The International Covenant on Civil and Political Rights (ICCPR) another international human right instrument that has been ratified on April 1979 including India. The Covenant (ICCPR) protects against discrimination of any kind, including discrimination based on “social origin” but it also protects against torture, degrading treatment, arbitrary arrest and detention and promotes equality in the courts and equal protection before the law. Article 2(1) of the ICCPR says that State Parties pledged to “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant. Article 2(2) of ICCPR requires States “to adopt such legislative measures or other measures as may be necessary to give effect to the rights”. Although India’s domestic laws address many of the rights articulated in the ICCPR , these rights are often not enforced with regard to Dalits. In failing to “respect and ensure” Dalits rights, India is violating its legal obligations under the ICCPR. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, GA Res 2200 (XXI), UN, GAOR, 21st Sess. Supp. No. 16 UN Doc. A/6316 (1966), also see Aggarwal HO, “International Law and Human Rights” Central Law Pub. Allahabad, 2010 The Human Rights Committee (HRC) was established through the ICCPR to monitor State Party compliance. Although India did not sign the Optional Protocol to the ICCPR, and the HRC does not have jurisdiction to review human rights complaints made individual Dalits, the HRC does have the power to comment on India’s ICCPR obligation as whole. In 1997, the HRC found that India was violating its obligations under the ICCPR through its treatment of Dalits because, despite the existence of legislation to protect them, Dalits still “endure severe social discrimination” and face “inter-caste violence, bonded labour and discrimination of all kinds”. The HRC further recommended that India adopt measures such as educational programs at the national and state levels to combat discrimination. Hanchinamani, BIna B. “Human Rights Abuses of Dalits in India” Human Rights Brief, Vol -8 No. 2, American University Washington College of Law, pp. 15, 18-19 India has also failed to meet its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) which it ratified on December 3, 1968. The CERDs protections extend beyond state discrimination and require State Parties to “prohibit and bring to an end, by all appropriate means, including legislation, as required by circumstances, racial discrimination by any persons, group or organization” as stated in Article 2(1) (d). While Indian domestic law designated to protects Dalits, the fact that Dalits often do not benefit from these law demonstrates India’s failure under CERD. Compliance of the above is monitored by the Committee on CERD, which periodic reports written by States Parties, conducts hearing and issue comments on inter-state and individual complaints. Although Indian Dalits cannot bring individual complaints to the CERD Committee because India did not submit to such jurisdiction under CERD, India is still subject to the reporting powers of the CERD Committee specifically found that Dalits fell within the scope of CERD because its jurisdiction under Article 1 extends beyond “race” to cover “descent”. The CERD Committee found that India allowed Dalits to be discriminated against and allowed those violating Dalits rights to operate with impunity. Ibid India has also violated the certain basic norms to protect the Dalit workers in accordance with its obligations under the International Labour Organization (ILO) No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi Tribal Populations in Independent Countries (Convention 107) For the text of these documents see Human Rights-A Compilation of International Instruments, Vol-1,Part First & Second, Universal Instrument, New York, United Nations, 1993 which ratified on September 29, 1958. International Labour Organisation, Conventions and Recommendations 1919-1966 (Geneva: ILO, 1966), p. 891. The ILO also passed the Abolition of Forced Labour Convention (No. 105) in 1957; India, however, chose not to sign this convention. Under the Convention 107, India is obligated to protect the “institutions, persons, property and labour” of member of tribal or semi-tribal population. Although Convention 107 does not explicitly define the term “tribal”, in Article 1 (2), it define “semi-tribal” as group and persons, who, although they are in the process of losing their tribal characteristics, are not yet integrated into the national community.” Article 15 of the Convention 107 specifically provides for their protection against labor discrimination, including access to employment, equal pay for work of equal value, industrial hygiene and prevention of employment injuries. Further, Dalit children who are forced into bonded labour, or the practice of devadasi, are protected under the provisions in the Convention of the Rights of the Child of 1989 (CRC) which India ratified on 11 December, 1992. Article 32 of the CRC protect against the “economic exploitation” and the performance of “any work that is likely to be hazardous or to be harmful to the child’s health or physical, mental, spiritual, moral and social development. Both the practices of child labour and the practice of davadasi violate India’s obligation under the CRC. Although India is obligated under several international instruments to uphold Dalit rights, there is little enforcement power to ensure that India meets its obligations under the international law. Most of the international enforcement mechanisms for Dalit involve making recommendations to the Indian government and publicizing its failures to uphold international obligations in order to shame India into compliance. Because India considers international interference into such matters to be unlawful interference with sovereign domestic affairs, enforcement of international law is slow and often has minimal influence on India. V. A Critique of Legal Mechanism for Dalits The rampant of human rights violations of Dalits takes many forms and shapes, most importantly the rising graph of sexual and physical violence against Dalit women another matter of great concern and there is no solution of this gigantic problem as caste based violence decimated rapidly. There have been numerous incidents of horrible violence against Dalits in states like Madhya Pradesh, Bihar, Haryana and Uttar Pradesh and state government and local authorities seems a completely defunct body. All these pose a serious question mark on existing legislative provisions and enforcement agencies for the protection of Dalits rights which have been enacted to ameliorate the deplorable condition of Dalits and Untouchables. The genesis of the widespread violation of the human rights of Dalits in multiple spheres of human relations in Indian society are also to be found in the continuation of the Hindu social order, namely the institution of the caste system and practice of untouchability, and the supportive role of some element of religious ideology, which support the doctrine of “inequality”. In this context Dr. Ambedkar righty said that “Inequality” is a religious doctrine which is adopted and consciously preached as sacred dogma by the Hindus. Sukhdeo Thorat, “The Hindu Social System & Human Rights of Dalits”, Critical Quest, New Delhi, 2004 p. 25 It is the official creed of Hinduism that clearly spell out in this famous of quote of Tulsidas, “Dhor, ganwar, shudra aur nari-ye sab tadan ke adhikari”. Its mean the animals, illiterates, dalits and women all are deserved to be punished. See, “Hindu Samaj ke Pathbhrashtak-Tulsidas” Delhi Press Publication, 2010, E-3, Jhandewalan Estate, New Delhi-110055 Above stated Hindu philosophy led to the prescribed way of life as religious doctrine. This has also led to the societal culture which preserves inequality and justifies atrocities against Dalits. Due to this there has been numerous reports of Dalit atrocities as India is failed to protect the Dalits human rights despite several safeguards i.e. Constitutional and Statutory provisions. We must agree that there is great disparity between legal and public policy pronouncements and their practice can be discerned. Discrimination based on caste perpetrated or religious hatred is practiced not only by the upper caste advantaged people but also by the state through its executive agencies like the police or sometime in subtle ways through legislative Acts. Like the UN human rights regime, the Indian Constitution makes the individual the focus of its human rights framework. Every Indian citizen, irrespective of his caste and religion is entitled to these rights are available to all persons. Most of the human rights provisions under Indian Constitution use phrase such as “no person shall be denied of…..” or “all citizens have these rights” etc. But the ground realities tells a different story, almost every alternative day we heard a news like Dalit woman raped, Dalits villagers house burnt down etc. The Indian experiences with regard to the human rights of Dalits reveal that despite numerous national and international obligations to promote and protect the human rights of Dalits, the record of Indian state and society is far from satisfactory. As far as Constitutional law and record of judiciary approach towards upholding the human rights of Dalit is concerned, it represent the best secular values in the world. Further some of the policies and practice of the government not only a source of dissatisfaction but also violative of many international and national norms and standards promoting and protecting the human rights of Dalits and untouchables. Much can be achieved hopefully with their efforts and cooperation.