Chapter 3 The Legal Regulation of Caste Discrimination in India: Lessons Learned
3.4 Caste, equality and non-discrimination: legal framework
The COI establishes India as a ‘Sovereign, Socialist, Secular, Democratic Republic’.35 Articles 14-31 COI guarantee to all citizens various individual fundamental rights, corresponding to civil and political rights. Social and economic rights are incorporated in Articles 39-51 as ‘Directive Principles of State Policy’ which must be applied by the State in making laws.36 Article 14 guarantees equality before the law, while Article 15(1) prohibits discrimination by the State ‘against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’. Article 17 abolishes Untouchability (although not the caste system per se) and criminalises its practice in any form. Articles 16(1) and 16(2), respectively, guarantee equality of opportunity and prohibit discrimination based on religion, race, caste, sex, descent, place of birth, or residence in public employment or State office. Article 15(2) provides that ‘[n]o citizen shall be subject, on grounds of religion, race, caste, sex or place of birth, to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels or places of public entertainment, or the use of wells, tanks, bathing ghats, roads or places of public resort maintained out of State funds or for general public use’ – these being the major forms in which Untouchability is practised by private actors in the public sphere. India’s constitutional provisions relating to Untouchability are operationalised by criminal legislation. Caste-based crimes, including Untouchability offences, are punishable
35 COI, Preamble. The words ‘Socialist, Secular’ were added after ‘Sovereign’ by the Constitution (Forty-second) Amendment Act 1976, S.2.
36
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under the Indian Penal Code (IPC) and/or under special ‘hate crimes’ legislation. The Protection of Civil Rights Act 1955 (PCRA)37 defines certain acts as offences if committed because of Untouchability, while the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (POAA or ‘Atrocities Act’) lists twenty- two ‘hate crimes’ where the victim (but not the perpetrator) is an SC/ST.38
The very enactment of the POAA and the nature of the offences it prohibits is indicative of the persistence and severity of abuses suffered by Dalits in contemporary India.
Although commonly thought of as an American phenomenon, India’s affirmative action policies pre-date America’s policies by many decades.39 The COI provides for special measures of affirmative action (‘reservations’) at national and regional levels by way of quotas in electoral seats, public sector and government employment and seats in higher education institutions to three historically disadvantaged and under- represented groups: Scheduled Castes (SCs) (the only group afflicted by Untouchability), Scheduled Tribes or STs (adivasis) and Other Backward Classes (OBCs).40 Reservations in public employment and higher education in India originate
37
Formerly the Untouchability (Offences) Act 1955, amended and renamed in 1976 to enlarge its
scope and to strengthen its penal provisions; see
http://tribal.nic.in/writereaddata/linkimages/pcract955E2701676142.pdf
(visited 18 December 2012). 38
See http://socialjustice.nic.in/poa-act.php (visited 18 December 2012).
39 See T. Weisskopf, Affirmative Action in the United States and India: A Comparative Perspective (London: Routledge, 2004) 4; S. Fredman, Comparative study of anti-discrimination and equality laws of the US, Canada, South Africa and India (Luxembourg: European Commission, Directorate- General for Justice, 2012).
40 The COI guarantees cultural, linguistic and educational rights (Articles 29 and 30) and freedom of religion (Articles 25-28). In 1992, a statutory body, the National Commission for Minorities (NCM), was established to ensure the development of minorities – defined by the National Commission for Minorities Act 1992 (NCMA) as ‘a community notified as such by the Central government’ – and to safeguard their rights. The minorities label has been accorded to religious minorities only. Five communities have been centrally notified as minorities – Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) – notwithstanding the fact that Article 25 COI subsumes Sikhs and Buddhists as well as Jains within Hinduism (the majority religion). Religious, linguistic and cultural minorities do not benefit from reservations qua minorities (although some minorities may qualify for reservations as OBCs on grounds of social and educational backwardness); see Waughray (2010), n 34 above. In January 2012, the Indian government announced a 4.5% ‘minorities sub-quota’ within the 27% OBC quota, for OBCs who are also minorities (e.g. Muslims). The status of the sub-quota is uncertain; see
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in special measures for non-Brahmins introduced by certain Princely States and Provinces in the early twentieth century,41 while reserved seats in the national and provincial legislatures originate in British concessions to Muslims at around the same time.42 The COI mandates reservations for SCs and STs (but not OBCs) in political representation at local, provincial and national level on the basis of their population share.43 Article 15(4)44 authorises (but does not mandate) the reservation of seats in State higher education institutions for SCs and STs and, since 2006, for OBCs45 and in private educational institutions other than minority institutions covered by Article 30(1).46 Article 16(4) authorises (but does not mandate) reserved posts in public sector (but not private sector) employment for SCs and STs in provincial and Central government services47 and for OBCs in provincial and (since 1993) in Central services.48 In the absence of a constitutional ceiling on reservations in higher education and public employment, case law has established a fifty per cent ceiling.49 The quota for SCs is 17 per cent and for STs 7.5 per cent50 (roughly their percentage
‘Supreme Court refuses to stay Andhra HC OBC sub-quota verdict again’, Economic Times,14 June 2012; M. Ali, ‘Indian Muslim OBCs: Backwardness and Demand for Reservation’, EPW, 8 September 2012, 74-79.
41 Mendelsohn and Vicziany, n 11 above, 129-130.
42 Separate electorates were accorded to the Muslims by the British in 1909 on the basis of their identity as a separate religious community; M. Galanter, Competing Equalities: Law and the Backward Classes in India (Berkeley: University of California Press, 1984) 25; B. Shiva Rao, The Framing of India’s Constitution: A Study (New Delhi: Indian Institute of Public Administration, 1968) 3.
43
COI, Articles 330, 332, 243-D(1)(a), and 243-T(1).
44 COI, Article 15(4) was inserted by the Constitution (First Amendment) Act 1951 S.2 following the Supreme Court’s decision in State of Madras v Champakam Dorairajan (1951) AIR SC 226.
45
Central Educational Institutions (Reservations in Admissions) Act 2006, enacted pursuant to the Constitution (Ninety-third) Amendment Act 2005.
46 COI, Article 15(5), inserted by the Constitution (Ninety-third) Amendment Act 2005 S.2. 47 COI, Articles 335 and 16(4).
48 Prior to the Supreme Court decision in Indra Sawhney v Union of India (1992) AIR SC 477, States were free to grant State-wide backward class reservations in State sector employment at their discretion, but there were no Central OBC reservations.
49 Devadasan v Union of India AIR 1964 SC 179; Indra Sawhney v Union of India, ibid. (1992);
Balaji and Ors v State of Mysore (1963) AIR SC 649. 50
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of the overall population), and for OBCs 27 per cent, such that the combined reservation quota for the three categories does not exceed 50 per cent.51
Legislation has also been introduced to protect Dalits – the majority of whom work in the unorganised sector52 – from degrading and humiliating customs and employment practices, and from economic exploitation. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993 prohibits manual scavenging and criminalises the employment of scavengers by public actors and has been adopted by most States and Union Territories53 – yet, according to a recent academic study, there are still an estimated 1.2 million manual scavengers in India, many of whom are employed by local authorities and public bodies such as the railways.54 Dalit girls are subject to the pseudo-religious practice of ritualised prostitution, known as Devadasi or Jogini, where pre-pubescents are dedicated to a temple or deity and condemned to a life of sexual exploitation as temple prostitutes.55 Devadasi has been abolished in Karnataka and Andhra Pradesh,56 but the practice persists.The Bonded Labour System (Abolition) Act 1976 abolishes and criminalises bonded labour, while the Child Labour (Prohibition and Regulation) Act 1986 prohibits child labour in certain employments and regulates it in others. These statutes do not specifically mention Dalits, but since the majority of bonded labourers and many child labourers are Dalits, the provisions are particularly relevant to them. The Minimum Wage Act 1948 prevents employers appropriating the fruits of labour
51 Indra Sawhney,n 48 above, 93. See also n 40 above. 52
GOI, Ministry Of Labour, New Delhi, Annual Report 2007-8, Chapter 8.
53 GOI, Ministry of Social Justice and Empowerment (MSJE), Report 2009-10, 47, at
http://socialjustice.nic.in/ar10eng.php (visited18 December 2012).
54 Shah et al., n 13 above, 107-109. In contrast, the MSJE puts the number of manual scavengers at 350,000 in January 2007 and 117, 000 in 2009; MSJE, ibid.,48.
55
M-C. Torri, ‘Abuse of Lower Castes in South India: The Institution of Devadasi’, 11(2) Journal of International Women’s Studies (2009) 31-48; B. Kidron, ‘Devadasis are a cursed community’, The Guardian, 21 January 2011; CERD, 5 May 2007, n 31 above, para. 18.
56 Andhra Pradesh Devadasi (Prohibition of Dedication) Act 1988; Karnataka Devadasi (Prohibition of Dedication) Act 1992.
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of the poor. Finally, laws have been introduced to reduce the concentration of productive assets and economic resources in the hands of the higher castes and to secure more equitable distribution of economic assets, for example through land reform and debt relief legislation.57
3.5 India: weaknesses and limitations