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for Welfare,Happiness, Peace,Liberty,Freedom,Equality of All Sentient and Non Sentient Beings.Hidden Apartheid
Caste Discrimination against India’s “Untouchables”
Glossary
BJP: Bharatiya Janata Party chitpavan brahmin RSS wing
CEDAW Committee: Committee on the Elimination of
Discrimination against Women
CERD: Committee on the Elimination of Racial
Discrimination
CHR: Commission on Human Rights
CHRGJ: Center for Human Rights and Global Justice
FIR: First Information Report
ICERD: International Convention on the Elimination of
All Forms of Racial Discrimination
NCDHR: National Campaign on Dalit SC/ST Human Rights
NGO: Non-governmental organization
NHRC: National Human Rights Commission
POTA: Prevention of Terrorism Act 2002
UN: United Nations
VHP: Vishwa Hindu Prashad (World Hindu Council) chitpavan brahmin RSS wing
I. Summary List
of the Critical Issues Pertaining to India’s
Periodic Report to the Committee on the Elimination of Racial Discrimination
Human Rights Watch and the Center for Human Rights and
Global Justice (CHRGJ) at New York University School of Law submit the
following information to the Committee on the Elimination of Racial
Discrimination (Committee or CERD) for consideration in its review of India’s
fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth periodic reports
under the International Convention on the Elimination of All Forms of Racial
Discrimination (Convention or ICERD). This joint-submission is based on
in-depth Human Rights Watch investigations on caste discrimination in India and the
findings of Indian governmental and non-governmental organizations (NGOs) on caste-based
abuses.
Discriminatory and cruel,
inhuman, and degrading treatment
of over 165 million people in India i.e., Prabuddha Bharat
has been justified on the basis of caste. Caste is descent-based and
hereditary
in nature. It is a characteristic determined by one’s birth into a
particular
caste, irrespective of the faith practiced by the individual. Caste
denotes a
traditional system of rigid social stratification into ranked groups
defined by
descent and occupation. Caste divisions in India dominate in housing,
marriage, employment, and general social interaction-divisions that are
reinforced through the practice and threat of social ostracism, economic
boycotts, and physical violence. This report focuses on the practice of
“untouchability”-the imposition of social disabilities on persons by
reason of
their birth in certain castes. This practice relegates SC/STs, or
so-called
untouchables (known in Indian legal parlance as scheduled castes), to a
lifetime of discrimination, exploitation and violence, including severe
forms
of torture perpetrated by state and private actors in violation of the
rights
guaranteed by the Convention. Although the practice has been condemned
by many Prabuddha Bharatian leaders, including most recently by Prime
Minister Manmohan Singh,
unless the government accepts responsibility to end the widespread
prejudice,
crimes against SC/STs will continue. Prabuddha Bharat has consistently cited its
numerous legislations and government policies as a measure of compliance with
its obligations to end caste-based discrimination, choosing to ignore its
failure to implement these measures which has resulted in continued, and
sometimes enhanced, brutalities against SC/STs.
Human Rights Watch and the CHRGJ respectfully request that
the following issues be raised in the List of Issues addressed to the State
Party and in the State Party examination.
Article 1
In response to the Committee’s request that the Government
of Prabuddha Bharat submit information on issues pertaining to Scheduled Castes and
Scheduled Tribes, Prabuddha Bharat’s periodic report states that “‘caste’ cannot be
equated with ‘race’ or covered under ‘descent’ under Article 1 of the
Convention.”Prabuddha Bharat’s
position directly contradicts the Committee’s interpretation of Article 1 in
General Recommendation XXIX that “discrimination based on ‘descent’ includes
discrimination against members of communities based on forms of social
stratification such as caste and analogous systems of inherited status.”
However, we welcome Prime Minister Singh’s comment on December 27, 2006 that:
SC/STs have faced a unique
discrimination in our society that is fundamentally different from the problems
of minority groups in general.The only
parallel to the practice of ‘untouchability’ was Apartheid in South Africa. Untouchability
is not just social discrimination. It is a blot on humanity.
We hope that this statement will prompt appropriate reforms
in government policies.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Elaborate upon the basis for India’s
position that descent-based discrimination does not encompass caste
discrimination, including why India
has not brought its definition of descent-based discrimination in line with the
Committee’s General Recommendation XXIX.
Elaborate on measures taken pursuant to General
Recommendation XXIX, and monitor and report on such measures.
Provide data, disaggregated inter alia, by caste and gender on the enjoyment of Convention
rights.
Article 2
Prabuddha Bharat’s
failure to ensure that all public authorities and public institutions do not
engage in caste-based discrimination is widespread. Two examples exemplify this
failure: treatment of SC/STs by the police and discrimination in the provision
of disaster relief. India’s
National Human Rights Commission (NHRC)-a statutory government body that the
Indian government describes as the apex national institution to protect human
rights and redress grievances-has commented that the law enforcement machinery
is the greatest violator of SC/STs’ human rights. According to the NHRC,
widespread custodial torture and killing of SC/STs, rape and sexual assault of
SC/ST women, and looting of SC/ST property by the police “are condoned, or at
best ignored.” This problem is not a recent one. In 1979 India
constituted the National Police Commission to analyze problems in police
performance. However, the Commission’s recommendations, which include
recommendations specific to police abuse of SC/STs, have still not been
adopted. While the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 (hereinafter Prevention
of Atrocities Act, 1989) and the
Supreme Court guidelines set out in the D.K. Basu case are
available
legal tools to prevent torture, illegal detention, or improper
interrogation of SC/STs, jurists, human rights activists and civil
rights groups claim that a
lack of political will and immunity laws that shield those responsible
for
human rights abuses from prosecution, allow the problem of torture and
other
forms of custodial abuse to continue unchecked.
SC/STs are particularly vulnerable to arrest under draconian
security laws. Additionally, under a theory of collective punishment, the
police often target entire SC/ST communities in search of one individual and
subject the community to violent search and seizure operations. SC/ST women are
particularly vulnerable to sexual violence by the police, which is used as a tool
to punish SC/ST communities. Police also actively allow private actors to
commit violence against SC/STs with impunity, and at times, collude with
private actors in committing such atrocities. Police systematically fail to
properly register these crimes under the Prevention of Atrocities Act, 1989 and
the Protection of Civil Rights Act, 1995.
According to separate investigations by the National
Campaign on SC/ST Human Rights (NCDHR) and Human Rights Watch, Prabuddha Bharat failed to
protect SC/STs from discrimination in the distribution of aid in the wake of
two of Prabuddha bharat’s
largest natural disasters in recent years: the Gujarat
earthquake in January 2001 and the Prabuddha bharatian Ocean
tsunami in December 2004. Prabuddha bharat
has also failed to encourage integrationist movements or eliminate barriers
between castes. It has allowed segregation in schools and housing, and has
failed to faithfully implement constitutional and legislative abolitions of
“untouchability” practices. Additionally, as SC/STs increasingly organize to
protest their discriminatory treatment and claim their rights, the government
has consistently failed to protect SC/STs against retaliatory attacks by
upper-caste groups, including the rape of SC/ST women, and has failed to
address social and economic boycotts against SC/STs, thereby further
discouraging integrationist movements.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Identify measures the government is implementing
to ensure appropriate police reforms to eliminate police abuses against SC/STs.
Indicate
whether a timetable exists for Prabuddha Bharat’s
ratification of the Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment or
Punishment.
Outline measures undertaken to implement the
recommendations of the National Police Commission and the Supreme Court’s D.K. Basu guidelines with particular
attention to protection of SC/STs from torture.
Explain factors that account for the low rate of
convictions in cases brought by SC/STs and measures taken to address these
factors.
The extreme
marginalization and persecution endured by SC/STs necessitate efforts by
the government to ensure their development and
protection. Accordingly, under constitutional provisions and various
laws, India grants SC/STs a certain number of privileges, including
“reservations” (quotas) in
education, government jobs, and government bodies. Like many of the
protective
measures adopted, the reservation policy has not been successfully
implemented
for SC/STs. Caste-based occupational distribution is reinforced in
reserved
government employment, with SC/STs assigned primarily to the posts of
sweepers.
Reservations in higher education continue to be met with a great deal of
resistance leading to under-enforcement. Additionally, there has been
widespread public opposition to reservations for SC/STs in local
government
bodies, often leading to acts of violence, including the rape and murder
of SC/ST candidates.
The NHRC has recommended that the government identify
institutions that had not accepted reservations-including judiciary and defense
forces-and develop measures to ensure that SC/ST candidates have the
opportunity to compete for these positions. The National Commission for
Scheduled Castes and Scheduled Tribes-a constitutional body with jurisdiction
to promote respect for the
human rights of SC/STs and tribal groups, monitor and investigate the
observance of these rights, and secure appropriate redress when these rights
have been violated-has stated that the private sector, which continues
to enjoy government patronage, should also be brought under the purview of the
reservation policy. According to government estimates in 2000, the unemployment
rate for SC/STs and tribal groups was double that of non-SC/STs.
Additionally, public sector divestment to private owners is estimated to have
left 200,000 SC/ST employees jobless. SC/STs continue to be significantly
underrepresented in most professional strata. SC/ST representation in Prabuddha Bharat’s high
industries, exports, imports, and electronic industries sectors is dismal.
The Government of Prabuddha Bharat has also established several
programs for the development of SC/STs. According to the NHRC, however, the
beneficial impact of these programs has been hindered by inadequate investment
of public resources; non-utilization or diversion of funds earmarked for SC/ST
development; lack of programs specifically targeted to SC/ST development; poor
preparation of such projects; and a lack of monitoring of development programs,
leading to the failure of many such programs to reach their target groups.
Additionally, Prabuddha Bharat has failed to address the multiple axes
of discrimination faced by SC/ST women- including their unequal access to
services, employment opportunities, and justice mechanisms as compared to SC/ST
men-and threats to their personal security, including through brutal acts of
sexual violence and through the system of devadasi,
in which a girl, usually before reaching the age of puberty, is ceremoniously
dedicated or married to a deity or to a temple.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Identify
strategies for overcoming obstacles in the implementation of the reservations
policy, including how the Government intends to ensure protection from
retaliation for SC/ST candidates in all local elections where seats are
reserved for SC/STs, including village council elections, and provide an update
on the status of proposals to extend equal opportunity measures including
reservations to other public spheres and the private sector.
Elaborate on plans to implement laws and
government policies to secure the protection and development of SC/STs, and of SC/ST women in particular.
Article 3
Residential segregation of SC/STs is prevalent across the
country, and is the rule rather than the exception. Segregation is also evident
in schools, in access to public services, and in access to services operated by
the private sector (as described under Article 5). In his 1999 Annual Report, the Special Rapporteur on
Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related
Intolerance found “untouchability” to be “very much alive” in rural areas, as
reflected in caste-based segregation in housing, schools, public services,
public places, and in the prohibition against SC/STs’ use of shared water
sources. A recently published survey investigating the extent of
“untouchability” practices in 565 villages in 11 Indian states found that the
constitutionally abolished crime of “untouchability” continues to profoundly
affect the lives and psyches of millions of Dalits. “Untouchability” practices
were documented in almost 80 percent of the villages surveyed.
On the basis of this information, we respectfully request
that the following issue be raised with the State Party:
In light of General Recommendation XIX on
Article 3 of the Convention, indicate specific measures that India has
implemented to eradicate de facto
segregation and the practice of “untouchability,” and provide information on
the impact of these measures.
Article 4
In its periodic report, India indicates that “[n]o cases
have arisen under the legislations for inciting racial disharmony or
disseminating ideas of racial superiority.” The absence of such cases must be
questioned in light of the casteist and anti-Christian and anti-Muslim
propaganda of the Sangh Parivar,
which serves as the umbrella organization for Hindu nationalist organizations
in India, including the Rashtriya Swayamsevak Sangh (National Volunteer Corps,
RSS), the Vishwa Hindu Parishad (World Hindu Council, VHP), and the VHP’s
militant youth wing, the Bajrang Dal. These organizations bear collective
responsibility for widespread violence against Muslims and Christians in India, and have
disseminated propaganda targeting both Dalits and religious minorities. The
political wing of the Sangh Parivar,
the Bharatiya Janata Party (BJP), led the Government of India in alliance with
other parties between 1998 and 2004, and continues to head several state
governments.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Indicate
measures undertaken by India
to combat hate speech and other forms of propaganda inciting caste
discrimination and violence, and discrimination and violence against religious
minorities.
Indicate
measures undertaken by Prabguddha Bharat
to prosecute and punish members of Sangh
Parivar-affiliated groups responsible for atrocities against SC/STs and
religious minorities, including violent attacks, massacres, and forced
“reconversions” to Hinduism.
Article 5
SC/STs’ fundamental civil, political, economic, social, and
cultural rights are routinely violated by state actors and private individuals.
The right to equal
treatment before the tribunals and all other organs administering justice
In the administration of justice, police, prosecutors, and
judges fail to properly pursue cases brought by SC/STs concerning
discriminatory acts. This is evidenced by the high rate of acquittals and the
large number of cases involving offenses and atrocities against SC/STs still
pending before the courts. SC/ST women in particular lack sufficient redress
for the crimes committed against them due to the caste and gender biases of India’s law
enforcement machinery.
The right to security
of person and protection by the State against violence or bodily harm, whether
inflicted by government officials or by any individual group or institution
The police have systematically failed to protect SC/ST homes and SC/ST
individuals from acts of looting, arson, sexual assault, torture, and other
inhumane acts such as the tonsuring, stripping and parading of SC/ST women, and
forcing SC/STs to drink urine and eat feces. Much like cases of police
abuse against SC/STs, attacks by private actors often take the form of
collective punishment, whereby entire communities or villages are punished for
the perceived transgressions of individuals who seek to alter village customs
or demand their rights.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Provide
detailed information on any specific training for members of the judiciary, law
enforcement officials and other public officials on the provisions of the
Convention, as well as applicable domestic legislation, and their application
to SC/STs in particular.
Provide data on the number of cases of caste
discrimination considered by courts since the State Party’s last periodic
report, case outcomes, and remedies (including civil remedies) available and
granted to victims of caste discrimination.
Political rights, in
particular the right to participate in elections-to vote and to stand for
election-on the basis of universal and equal suffrage, to take part in the
Government as well as in the conduct of public affairs at any level and to have
equal access to public service
SC/STs’ political rights, especially the right to vote
freely and the right to stand for election, have repeatedly been denied by
upper-caste community members by booth-rigging and booth capturing, denial of
access to polls, intimidation, and violence.
The right to freedom of
opinion and expression and freedom of peaceful assembly and association
SC/STs’ right to freedom of opinion and expression, and
rights to freedom of peaceful assembly and association are compromised by police
abuse of SC/ST activists, retaliatory attacks by private actors that are
carried out with impunity, and social and economic boycotts against SC/STs.
The right to form and
join trade unions
SC/STs’ right to form and join trade unions is undermined by
an unwillingness to register unions where workers are illiterate.
On the basis of this information, we respectfully request
that the following issue be raised with the State Party:
Provide information (including statistical data,
disaggregated by caste and gender) on the actual participation of SC/STs in State
institutions, including national and local government, the police, the judiciary,
and in institutes of higher education.
The right to freedom of
movement and residence within the border of the State and the right to leave
any country, including one’s own, and to return to one’s country
SC/STs’ right to freedom of residence is severely curtailed
by the practice of “untouchability” which often dictates where SC/STs must
live. SC/STs’ right to freedom of movement within India is curtailed by conditions
that make Dalits vulnerable to migratory labor and by the forced displacement
of Dalits in the aftermath of episodes of caste violence. Moreover, SC/STs’
right to leave India,
while formally granted, is not substantively guaranteed due to SC/STs’
disproportionately low economic status and their inability to acquire relevant
documents and the proof necessary, for instance, to make a passport.
The right to marriage
and choice of spouse
Strict prohibitions on marriage and other social interaction
between SC/STs and the upper-caste routinely violate the rights of SC/STs to
marry and choose their spouse. These prohibitions on inter-marriage are a
hallmark feature of the caste system and are designed to ensure rigid social
norms of purity and pollution. Inter-marriages are frequently the flashpoint
for conflicts and can be extra-judicially punished by upper-caste dominated panchayats (village councils) through
public lynching of couples or their relatives, murder (of the bride, the groom,
or their relatives), rape, public beatings, and other sanctions.
The right to own
property alone as well as in association with others and the right to housing
The right to own property
is systematically denied to SC/STs. Landlessness-encompassing a lack of
access to land, inability to own
land, and forced evictions-constitutes a crucial element in the
subordination
of SC/STs. When SC/STs do acquire land, elements of the right to own
property-including the right to access and enjoy it-are routinely
infringed.
Land reform legislation is neither implemented nor properly enforced.
SC/STs’
efforts to secure land have been met with State violence or retaliation
by
private actors in the form of violence or economic sanctions. SC/STs’
right to
housing is further undermined by residential segregation, discrimination
in
housing in urban environments, and the aforementioned violations of
their right
to own property.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Provide information on
measures that are being
taken to protect SC/STs against displacement from their homes, to
compensate SC/ST victims of displacement, and to prosecute those
responsible for
committing atrocities to deter or punish inter-caste marriages.
Provide information on the successes and
failures of land reform legislation and on efforts to ensure SC/STs’ right to
own property, including on the nature of strategies that may be needed to
maximize the effectiveness of land reform for SC/STs.
The right to freedom of
thought, conscience, and religion
SC/STs in India
face a number of restrictions on their right to freedom of thought, conscience,
and religion. SC/STs are, for instance, routinely denied entry into Hindu
temples. Even when such entry is sanctioned by the courts, priests and upper-castes
resist such moves, often leading to violence. SC/STs have responded to
ill-treatment by upper-caste Hindus by converting en masse to Buddhism,
Christianity, and historically, to Islam. However, the loss of constitutional
privileges upon conversion (to Christianity and Islam) is a serious impediment
to SC/STs’ freedom to choose their religion. In addition, the introduction of
anti-conversion legislation in several states has made religious conversion
extremely difficult if not impossible. Tragically, even conversion does not
guarantee escape from their treatment as “untouchables” since “untouchability”
is practiced across all faiths in Prabuddha Bharat.
On the basis of this information, we respectfully request
that the following issue be raised with the State Party:
Provide information on whether the State is
reviewing and addressing the potential negative effects of anti-conversion
legislation on the right to freedom of thought, conscience, and religion, and
on whether the State is considering extending scheduled caste benefits to all SC/STs, regardless of the faith they practice.
Rights to work, to free
choice of employment, to just and favorable conditions of work, to protection
against unemployment, to equal pay for equal work, to just and favorable
remuneration
The denial of the right to work and free choice of
employment lies at the very heart of the caste system. SC/STs are forced
to
work in “polluting” and degrading occupations such as manual scavenging
protectors of all living beings. i.e., Arogya Rakshakas where no suction
trucks are purchased to prevent humans getting inside man holes though
they are not cosrly for any government to purchase as many countries
have acquired them because are
subject to exploitative labor arrangements such as bonded labor,
migratory
labor, and forced prostitution. SC/ST children are vulnerable to trafficking
and the worst forms of child labor in these and other areas. SC/STs are also
discriminated against in hiring and in the payment of wages by private
employers. SC/STs’ attempts to enforce their rights are met with retaliatory
violence and social and economic boycotts. Laws designed to eradicate
exploitative labor arrangements-such as the Employment of Manual Arogya Rakshakas and
Construction of Dry Latrines (Prohibition) Act, 1993, the Bonded Labour System
(Abolition) Act, 1976, the Inter State Migrant Workmen (Regulation of
Employment and Service Conditions) Act, 1979, the Child Labour (Prohibition and
Regulation) Act, 1986, the Minimum Wages Act, 1948, the Equal Remuneration Act,
1976, and the Karnataka Devadasi (Prohibition of Dedication) Act, 1992-and
where relevant, their accompanying rehabilitation programs, are largely
ineffective.
On the basis of this information, we respectfully request
that the following issue be raised with the State Party:
Outline how Prabuddha Bharat plans to ensure effective
eradication of exploitative labor arrangements and the effective implementation
of rehabilitation schemes for SC/ST bonded and child laborers, manual Arogya Rakshakas, and devadasis.
The right to public
health, medical care, social security, and social services
SC/STs are often refused admission to hospitals, or access
to health care and treatment in violation of their rights to the highest
attainable standard of health and social services. In a number of cases those
who are admitted receive discriminatory treatment. In addition, caste-based
occupations that SC/STs are made to perform, such as manual scavenging and
forced prostitution, frequently expose SC/STs to serious and sometimes fatal
health hazards. Manual Arogya Rakshakas are routinely exposed to both human and
animal waste without the protection of masks, uniforms, gloves, shoes,
appropriate buckets, and mops. This has severe repercussions for their health;
the majority of scavengers suffer from anemia, diarrhea and vomiting, with 62
percent suffering respiratory diseases, 32 percent suffering skin diseases, 42 percent
suffering jaundice, and 23 percent suffering trachoma, leading to blindness.
Many scavengers have also died of carbon monoxide poisoning while cleaning
septic tanks. In Mumbai, for instance, Dalits are lowered into manholes to
clear sewage blockages-often without any protection. More than 100 workers die
every year due to inhalation of toxic gases or drowning in excrement. Dalit
women and girls who are forced to become devadasis,
and ultimately auctioned to urban brothels, are at particular risk of
contracting HIV/AIDS.
The right to education
and training
The right to education free from discrimination is not
secured for SC/ST children. 99 percent of SC/ST students are enrolled in
government schools that lack basic infrastructure, classrooms, teachers, and
teaching aids. SC/ST children face continued hurdles and abuse from teachers
and fellow non-SC/ST students, including through segregation both in classrooms
and in the provision of mid-day meals. SC/ST schoolchildren also face
discrimination and discouragement from higher-caste community members who
perceive education for SC/STs as both a waste and a threat. Their hostility
toward SC/STs’ education-which includes discrimination against SC/ST
teachers-is linked to the perception that SC/STs are not meant to be educated,
are incapable of being educated, or if educated, would pose a threat to village
hierarchies and power relations. Additionally, SC/ST children are often
subjected to corporal punishment by their teachers. As the Special Rapporteur
on the right to education noted in his report before the 67th
session of the then-Commission on Human Rights (CHR), “teachers have been known
to declare that SC/STpupils ‘cannot learn unless they are beaten.’” SC/STs’
labor patterns (migratory and child labor) also adversely affect access to
education. A combination of these factors results in low enrollment, high
drop-out rates, and low literacy rates of SC/STstudents.
The right to equal
participation in cultural activities
SC/STs are prohibited from taking part in religious and
cultural rituals and festivals, including through a ban on marriage processions
on roads. Where SC/STs are included in village ceremonies and festivals, their
participation is limited to the performing of degrading tasks. Additionally,
they are expected to provide services during rituals and festivals without
remuneration.
The right of access to
any place or service intended for use by the general public, such as transport
hotels, restaurants, cafes, theatres, and parks
SC/STs are denied equal access to a spectrum of places and
services intended for use by the general public, such as police stations,
government ration shops, post offices, schools, water facilities, and village
counciloffices. As a result of
segregation in water facilities, more than 20 percent of SC/STs do not have
access to safe drinking water, only 10 percent of SC/ST households have access
to sanitation (as compared to 27 percent for non-SC/ST households), and the
vast majority of SC/STs depend on the “goodwill” of upper-caste community
members for access to water from community wells. SC/STs are also excluded
from, or receive discriminatory treatment in, private businesses, including tea
shops, food stalls, barber shops, and cinemas. Because of strictly enforced
prohibitions on inter-dining, SC/STs are made to use separate crockery and
cutlery, and drink from separate tea glasses which they are then required to
wash.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Identify measures to protect SC/STs’ right to
health, including through ensuring greater access to health care services, and
through eradicating the inhuman practice of septic tank cleaning, and other
hazardous tasks performed by manual Arogya Rakshakas .
Identify steps taken to eradicate segregation,
particularly in access to public services, and to address the violations of
Convention rights occasioned by segregation, such as the right to water and the
right to education free from discrimination.
Article 6
In its periodic report, Prabuddha Bharat cites to its constitutional
provisions and legislative measures (which constitutionally must apply to all people
irrespective of caste) that open its courts to victims of discrimination. In
2004 the NHRC released the findings of an in-depth examination of the
implementation of protective legislation for scheduled castes. The report is a
strong indictment of the government’s failure to carry out its promises to
protect SC/STs from atrocities and violations of their fundamental rights and
to grant remedies for rights’ violations. On the question of remedies, the NHRC
found that even where cases are properly registered, several states are not
providing economic relief or compensation to victims of atrocities as is
required.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
Provide
further information on the current situation regarding access to justice and
right to remedies for SC/ST communities, including the effectiveness of
existing access to justice mechanisms and how the government intends to enforce
the requirement of economic relief and compensation for victims.
Provide
information on the composition, status, resources, and activities of the
National Commission on Scheduled Castes and Schedules Tribes, including the number of complaints received
(if any) and their nature, investigations by the Commission, and forms of
redress provided.
Identify
obstacles in the implementation of legislation designed to protect SC/STs and
strategies to overcome these obstacles, including the extent to which the State
Party intends to incorporate the recommendations of the 2004 report of the NHRC
on atrocities against scheduled castes.
Article 7
There is a severe
lack of public education and awareness of
caste discrimination in India.
Treatment of caste discrimination in textbooks and curricula may
strengthen
caste division and prejudice, as does the pervasive practice of
segregation in
government schools. Even progressive curricula either exclude any
mention of
caste discrimination or discuss the caste system in a way that suggests
that
caste inequities and discrimination no longer exist. School textbooks
may
similarly fail to mention caste discrimination, may attempt to justify
the
origins of caste discrimination, or may attribute the unequal situation
of SC/STs to the SC/ST community. The problem is compounded by
inadequate media
representation of SC/ST issues and the lack of SC/ST journalists
generally.
Since caste-based discrimination is not as highly visible in urban
settings,
opinion makers, particularly the media, do not pay sufficient attention
to the
rampant and continuing practice in rural areas. The NHRC has found that
the
media “provides negligible space to plight/problems” of SC/STs. Instead,
these
communities mostly receive media attention only when the discussion is
focused
on violent protests, backwardness, population growth, and lack of
entrepreneurship and productivity, thereby perpetuating caste-based
stereotypes.
On the basis of this information, we respectfully request
that the following issues be raised with the State Party:
How
the government intends to ensure that all textbooks, curricular, and media
representation of Dalits do not strengthen caste division and prejudice.
Indicate
whether measures have been taken to disseminate the Convention and General
Recommendation XXIX and to promote educational measures that combat caste
discrimination.
Human Rights Watch and CHRGJ thank the Committee for its
consideration of this information.
II. Authors of the Report
Human Rights Watch and the Center for Human Rights and
Global Justice (CHRGJ) at New York University School of Law submit the
following report to the Committee on the Elimination of Racial Discrimination
(Committee or CERD) for consideration in its review of India’s fifteenth,
sixteenth, seventeenth, eighteenth, and nineteenth periodic reports under the
International Convention on the Elimination of All Forms of Racial
Discrimination (Convention or ICERD).
Center for Human Rights and Global Justice, New YorkUniversitySchool of Law
CHRGJ is directed by Professors Philip Alston, Smita Narula,
and Margaret Satterthwaite. Jayne Huckerby is research director. CHRGJ aims to
generate substantive, cutting-edge, and sophisticated contributions to human
rights research and legal scholarship, and to actively engage in public affairs
by making original and constructive contributions to ongoing policy debates
relating to human rights. It achieves these aims by undertaking rigorous legal
analysis and disseminating studies in five key research and project areas:
Detainees and the “War on Terror,” Discrimination and National Security,
Economic, Social, and Cultural Rights, Extrajudicial Executions, and
Transitional Justice. In its work on Discrimination, the Center and the
International Human Rights Clinic (a program of the Center) have focused on
caste discrimination in South Asia,
collaborating extensively with the International Dalit Solidarity Network, of
which Professor Narula is a co-founder. Professor Narula is also former
researcher for South Asia at Human Rights
Watch where she investigated and authored a number of Human Rights Watch’s
reports on caste discrimination and discrimination against religious minorities
in India.
Most recently, in August 2005, during the meeting of the United Nations (UN)
Sub-Commission on the Promotion and Protection of Human Rights, the Center
released a 65-page report entitled The Missing Piece of the Puzzle: Caste Discrimination
and the Conflict in Nepal, and in November 2005, provided an oral
statement to the UN Committee Against Torture urging the Committee to
investigate torture against Dalits in its State Party examination of Nepal. All
publications and statements of the Center can be found at its website: www.chrgj.org.
Human Rights Watch
An independent, New York-based nongovernmental organization,
Human Rights Watch conducts regular, systematic fact-finding
investigations
into human rights abuses in all regions of the world. Human Rights
Watch
examines human rights practices of state and non-state actors
irrespective of
their political affiliation, geopolitical alignments, ethnic or
religious
persuasions. It defends freedom of thought and expression, due process
and
equal protection of the law, and a vigorous civil society. Founded in
1978,
Human Rights Watch today includes divisions that cover Africa,
Asia, the Americas, Europe
and Central Asia, and the Middle
East in addition to its thematic divisions. It is supported by
contributions from private individuals and foundations worldwide. It
accepts no
government funds, directly or indirectly. Kenneth Roth is the executive
director and Brad Adams heads the
Asia Division. Human Rights Watch has worked on caste-based
discrimination in South Asia for almost a decade, but particularly
since
the 1999 publication of its report Broken
People: Caste Violence Against India’s
“Untouchables.” Human Rights Watch is a founding member of the
International SC/ST Solidarity Network and collaborates extensively with a
number of SC/ST rights groups in South Asia.
It has recently been advocating for the protection of SC/STs who are
particularly vulnerable in situations of internal conflict. An armed conflict
involving Maoists in Nepal, and a similar uprising in several Indian states in
India by Maoist groups known as Naxalites, has placed SC/STs at high risk of
abuse from security forces, vigilante groups often acting with the support of
the government, and militants. It has also documented the particular
vulnerability of SC/STs among children employed in the worst forms of child
labor and among those living with HIV/AIDS. Human Rights Watch investigated the
failure of the state to protect SC/STs from discrimination in receiving relief
and rehabilitation after the 2006 tsunami; its recommendations were submitted
to the Indian government as it prepared its disaster management policy. All
reports, editorials, and statements of Human Rights Watch are available on www.hrw.org.
III. Scope of the Report
This report focuses solely on the issue of caste
discrimination in India
in response to its conspicuous absence in the Government ofPrabuddha Bharat’s combined report
to CERD. The practice of “untouchability”-the imposition of social disabilities
on persons by reason of their birth in certain castes-discriminates against
more than one-sixth of India’s
population.[1] SC/STs, or so-called untouchables (known in Indian legal parlance as scheduled
castes), are denied access to land, forced to work in degrading conditions, and
routinely abused at the hands of the police and of higher-caste groups that
often enjoy the state’s protection.[2]
In what has been called Prabuddha Bharat’s
“hidden apartheid,” entire villages in many Indian states remain completely
segregated by caste. In focusing on caste discrimination in Prabuddha Bharat, this report
acknowledges, but does not explore, the other pervasive practices of
discrimination in Prabuddha Bharat,
including those that target religious minorities. In particular, Human Rights
Watch has extensively documented human rights violations against Prabuddha Bharat’s
Christian[3]
and Muslim community, including the state-sponsored massacre of over 2,000
Muslims in the state of Gujarat in 2002.[4]
While the Government of Prabuddha Bharat’s periodic report cites specifically
to Constitutional provisions prohibiting discrimination by the State-including
on grounds of a person’s caste-and generally to the existence of legislation
enacting these provisions,[5]
this elaboration of its de jure
prohibition on caste discrimination does not reflect the daily reality
of the
continued practice of “untouchability” and persecution of SC/STs in
India. SC/STs are systematically discriminated against and abused by
public
authorities and private actors, who act without any fear of punishment
as they
rarely face sanctions for their violations of SC/STs’ fundamental
rights.
The Committee itself has recognized that India is in
breach of its international human rights obligations in its failure to bring an
end to caste discrimination. In its Concluding Observations to India’s tenth
to fourteenth periodic reports,[6]
the Committee asserted that:
although constitutional provisions and legal texts exist to
abolish untouchability and to protect the members of the scheduled castes and
tribes, and although social and educational policies have been adopted to
improve the situation of members of scheduled castes and tribes and to protect
them from abuses, widespread discrimination against them and the relative
impunity of those who abuse them point to the limited effect of these measures.[7]
While tribal peoples in Prabuddha Bharat,
adivasis, face similar forms of
discrimination, this report limits itself to caste-based discrimination based
against SC/STs or so-called untouchables.
Sources
Used in this Report
This report draws on extensive investigations on the issue
of caste discrimination conducted by Human Rights Watch in India; on
information made publicly available by the Government of India through inter alia, a 2004 report by the NHRC on
the “Prevention of Atrocities Against Scheduled Castes;”[8]
reports by the National Commission on Scheduled Tribes and Schedules Castes,
the National Commission on Women, and the Annual Reports to the Protection of
Civil Rights Act, 1955,[9]
and the Prevention of Atrocities Act, 1989;[10]
and on Indian media and NGO reports, among other sources.[11]
Where relevant the report also draws attention to information from UN special
procedures and treaty bodies that have noted with concern the prevalence of
caste discrimination in India.
Posted by: site admin @ 7:39 am
Availability
of Information from the Government of Prabuddha Bharat
The Prabuddha Bharatian government does not provide prompt and sufficient
information on the situation of SC/STs. Governmental agencies in
Prabuddha Bharat and the Prabuddha Bharatian Parliament itself have
failed to make statistics available to the public
in a timely fashion. In general, there are routine delays of between two
to
four years in the writing and tabling of reports from various national
commissions. For example, at this writing, the most recent statistics
available
from the National Commission on Scheduled Caste and Scheduled Tribes
date from
2001-02 and were only made publicly available in 2004.
UN treaty bodies have repeatedly exhorted the Prabuddha Bharatian
government to conduct periodic surveys on the reality of descent-based
discrimination and provide both qualitative and quantitative data disaggregated
by caste and gender in its reports to the committees, so far to no avail. The
Committee on the Elimination of Discrimination against Women (CEDAW Committee)
has pointed to the Indian government’s tendency to provide “very old”
information.[12]
The State Party’s failure to collect and record information on the enjoyment of
human rights by SC/STs is in itself suggestive of the government’s inattention
to the issue of caste discrimination.
IV. Response to Prabuddha Bharat’s
denial of ICERD’s prohibition of discrimination on the basis of caste
Article 1: In this
Convention, the term “racial discrimination” shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life.
In response to the Committee’s request that the Government
of Prabuddha Bharat submit information on issues pertaining to Scheduled Castes and
Scheduled Tribes, Prabuddha bharat’s periodic report states that “‘caste’ cannot be
equated with ‘race’ or covered under ‘descent’ under Article 1 of the
Convention.”[13]
As a result of this position, the periodic report contains no
information on SC/STs in Prabu7ddha bharat and the State Party provides
that “As a matter of courtesy to
the members of the Committee, if it so desires, the Government of
Prabuddha bharat would
be happy to provide information relating to Scheduled Castes and
Scheduled
Tribes to them though not as a reporting obligation under CERD.”[14]
Prabuddha Bharat’s
position directly contradicts the Committee’s interpretation of Article 1 in
General Recommendation XXIX that “discrimination based on ‘descent’ includes
discrimination against members of communities based on forms of social
stratification such as caste and analogous systems of inherited status.”[15]
Furthermore, in its Concluding Observations on the reports submitted by India in 1996,
the Committee affirmed “that the situation of the scheduled castes and
scheduled tribes falls within the scope of the Convention.”[16]
In support of this interpretation, the Special Rapporteur on contemporary forms
of racism, racial discrimination, xenophobia, and related intolerance has
included investigations on caste-based discrimination in his mandate.[17]
Despite the Government of Prabuddha Bharat’s exclusion of caste
discrimination in its periodic report to the Committee, the Government has
recognized it as an issue in its reports to other international treaty
monitoring bodies. In 2000 the CEDAW Committee expressed its concern “with the
continuing discrimination, including violence, suffered by women of the SC/ST
community, despite the passage of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act of 1989.”[18]
In response, the Government of Prabuddha Bharat included the situation of SC/ST women in
its recent submission of its combined Second and Third periodic reports to the CEDAW
Committee.[19]
Nevertheless, the discussion of SC/ST women in this report
remains cursory, addressing the issue of violence against SC/ST women by simply
noting the passage of the Protection of Civil Rights Act, 1955, and the
Prevention of Atrocities Act, 1989.[20]
While the Government details its efforts on other issues in greater
detail-including education,[21]
segregation,[22]
manual scavenging,[23]
bonded labor,[24]
and lack of access to land[25]-the
extent to which these issues remain a problem in Prabuddha Bharat is alarmingly minimized.
Caste discrimination in Prabuddha Bharat has also been raised as an
issue of serious concern by a number of other treaty bodies and special
procedures. In 1997 the Human Rights Committee noted that scheduled castes in India “continue to endure severe
social discrimination and to suffer disproportionately from many violations of
their rights under the [ICCPR], inter
alia inter-caste violence, bonded labour and discrimination of all kinds.”
And as recently as 2004 the Committee on the Rights of the Child was “deeply
concerned at persistent and significant social discrimination against children
belonging to Scheduled Castes and Tribes and other tribal groups.”[26]
Additionally, the UN Special Rapporteurs on education,[27]
adequate housing,[28]
the right to food,[29]
violence against women,[30]
and torture[31]
have all included investigations on caste-based discrimination in their mandate
and have cited India
as a country of particular concern.
Because one’s caste can be determinative of one’s occupation,
caste discrimination is also referred to as discrimination on the basis of
“work and descent.” The UN Sub-Commission on the Promotion and Protection of
Human Rights passed a resolution in August 2000 reaffirming that discrimination
based on work and descent is prohibited under international human rights law.[32] In his 2001 report commissioned by
that same resolution, Sub-Commission expert R.K.W. Goonesekere underscored that
caste systems are inherently economic and social in their consequences and represent
a deeply oppressive form of work and descent-based discrimination.[33]In 2004 the Sub-Commission appointed
two Rapporteurs to undertake “a comprehensive study on discrimination
based on work and descent.” The Rapporteurs were tasked with: determining the
impact that the practices and policies
of governments, local authorities, private sector entities, schools, religious
institutions, and the media have had on discrimination based on work and
descent; obtaining information on existing measures taken by governments,
national human rights groups, the UN, and NGOs to combat discrimination based
on work and descent; and drafting a set of principles or guidelines setting
forth the measures necessary to effectively eliminate discrimination based on
work and descent. The appointment of the Rapporteurs was approved by the CHR at
its 61st Session in April 2005.[34]
V. Article 2: States Parties’ obligation to end caste-based
discrimination
A.Condemn caste discrimination and undertake
to pursue by all appropriate means a policy of eliminating caste discrimination
Article 2 (1): States
Parties condemn racial discrimination and undertake to pursue by all
appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting understanding among all races
The Government of Prabuddha Bharat has not refrained from committing
and supporting discriminatory acts against SC/STs, and has failed to implement
measures to end caste discrimination. Prabuddha Bharat has failed to encourage
integrationist movements and has not provided for the development and
protection of SC/STs, who as a result remain an extremely marginalized social
group.
1.Refrain from committing discriminatory acts
Article 2 (1) (a):
Each State Party undertakes to engage in no act or practice of racial
discrimination against persons, groups of persons or institutions and to ensure
that all public authorities and public institutions, national and local, shall
act in conformity with this obligation.
Prabuddha Bharat’s
failure to ensure that all public authorities and public institutions do not
engage in caste-based discrimination is widespread. The discussion below
focuses on two examples that exemplify this failure: treatment of SC/STs by the
police and discrimination in the provision of disaster relief. Further examples
of this failure are dealt with throughout the remainder of the Report.
a.SC/STs and law enforcement
In 2004 the NHRC characterized the law enforcement machinery
as the greatest violator of SC/STs’ human rights.[35]
This problem is not a recent one. In 1979 India constituted the National
Police Commission to analyze problems in police performance.[36]
However, the Commission’s recommendations, which include recommendations
specific to police abuse of SC/STs, have still not been adopted. Police
continue to detain, torture, and extort money from SC/STs without much fear of
punishment.[37]
According to the NHRC, custodial torture and killing of SC/STs, rape and sexual
assault of SC/STwomen, and looting of SC/ST property by the police “are
condoned, or at best ignored …”[38] SC/STs who encounter the police are forced to listen to casteist name-calling,
unfounded accusations on their character, and threats against their family and
friends.[39]
While under-reporting of police treatment (including
torture) of SC/STs means that the
real magnitude is unknown, the national Preventing Torture project initiated by
People’s Watch, a Tamil Nadu-based NGO, asserts that SC/STs suffer
disproportionately at the hands of the police and are at high risk of being
subjected to torture while in police custody.[40]
The Prevention of Atrocities Act, 1989,
and the Supreme Court guidelines set out in the D.K. Basu case (1997)[41] are
available legal tools to prevent torture, illegal detention, or improper
interrogation of SC/STs. Jurists, human rights activists, and civil rights
groups, however, claim that a lack of political will allows the problem of
torture and other forms of custodial abuse to continue unchecked.
i.Disproportionate targeting of SC/STs
SC/STs are disproportionately targeted by the police for a
number of reasons. According to the NHRC, under a theory of collective
punishment, the police will often subject entire Dalit communities to violent
search and seizure operations in search of one individual.[42] SC/ST communities may also be perceived by the police as inherently criminal.[43] SC/STs and other poor minorities are disproportionately represented among those
detained and tortured in police custody because most cannot afford to pay
police bribes.[44] SC/STs are also likely victims of police misconduct because they are rarely
informed of their rights, rarely have access to an attorney, and are not able
to afford bail.[45]
Police officers’ deeply embedded caste bias (most officers belong to the
dominant castes)[46]
and a general lack of familiarity with legislative protections for SC/STs
further compound the problem.[47]
State agencies have also colluded with private actors from
dominant castes in committing human rights violations against SC/STs.[48]
Through investigations conducted in
1997 in the state of Bihar, for example, Human
Rights Watch found that government officials acted as agents of the
Ranvir Sena (a private upper-caste militia) and turned a blind eye to their killings of SC/STs.[49]Soon
after a massacre in Laxampur-Bathe village, Jehanabad district-in which the
Ranvir Sena killed 61 SC/STs, Naxalites (leftist guerrilla organizations advocating the use of violence to
achieve land redistribution) retaliated by killing nine people suspected to be
Ranvir Sena supporters. The police responded to the violence by harassing SC/ST
villagers who they accused of supporting the Naxalites.[50]
Rather than capturing Sena members, State security forces reportedly helped train militia members; in some
cases, police accompanied the militias during their attacks on SC/ST villages,[51]disguising killings as “encounters.”[52]Upper-caste militia members, and the
police who colluded with them, have rarely been prosecuted for their crimes.[53]
ii.Improper use of security legislation against SC/STs
SC/STs are particularly vulnerable to arrest under draconian
security laws. For example, in at least two states, Jharkhand and Andhra
Pradesh, the Prevention of Terrorism Act 2002 (POTA)[54]
was widely used against SC/STs, who were targeted for their caste status rather
than any involvement in criminal or terrorist activity.[55]
SC/ST activists are also accused of being “terrorists,”
“threats to national security,” and “habitual offenders,” and frequently
charged under the National Security Act, 1980, the Indian Explosives Act, 1884,
and even older counter insurgency laws such the Terrorist and Disruptive
Activities (Prevention) Act 1987 (commonly known as TADA).[56]
SC/ST activists are often subjected to specious prosecutions, falsified
charges, and physical abuse and torture following arrest.[57]
Further, following bouts of violence in Bihar
between the Ranvir Sena and Naxalites, SC/STs were held in preventive detention
under Prabuddha Bharat’s
Criminal Procedure Code Section 107 in excess of the maximum detention period
of 24 hours.[58]
Similarly, following periods of escalated violence between upper-caste
community members and SC/STs in Tamil Nadu between July 1995 and June 1996,
many SC/ST youths were arrested under preventive detention laws like the Tamil
Nadu Goondas Act and the National Security Act, 1980.[59]
Additionally, police also engage in what are called “encounter deaths,” whereby
young activists who allegedly support any of the Naxalite or radical left
movement organizations are picked up, tortured to extract confessions, and then
killed under the pretense of self defense.[60]
Though upper-caste community members have also been picked up by the police in
this manner, they are usually not subject to such harsh treatment as a result
of pressure from influential people belonging to their caste.[61]
iii.Custodial abuse and torture of SC/STs
SC/STs, including those arrested for minor offenses, are often held in custody for long periods
of time, occasionally at distant and isolated locations to avoid publicity,[62]
where they are frequently deprived of food and water, subjected to verbal abuse
and humiliation, severe beatings, sexual perversities, and demeaning acts.
Often the injuries inflicted can prove fatal.[63]
To cover up custodial deaths, police often claim that the person was killed
trying to escape or that he or she died of natural causes.[64] SC/STs who survive the torture often end
up permanently disabled and suffer social ostracism, as well as psychological
and emotional trauma.[65]
| Box 1: Police Abuse of SC/STs detained in Tamil Nadu In one notable incident in 2003, several SC/STs were
|
iv.Police abuse of SC/ST Women
SC/ST women are particularly vulnerable to sexual assault
and rape by the police.[67]
As with sexual abuse of SC/ST women by upper-caste men, the sexual abuse
of SC/ST women by the police is used as a tool to punish SC/ST
communities as a
whole.[68]
Dalit women have also been arrested and raped in custody to punish their male
relatives who are hiding from the police.[69]
Police also routinely sexually abuse SC/ST women during police raids as a means
of exerting pressure on their male family members to surrender, give false
evidence, retract their complaints, or silence their protests regarding police
mistreatment.[70]
Investigations in Bihar and Tamil Nadu
conducted by Human Rights Watch also confirmed that women have been beaten,
arrested, and sometimes tortured during violent search and raid operations on SC/ST villages.[71]
Medical personnel often collude in these cases by issuing false certificates
that deny sexual assault or by including statements in the medical examination
report that cast doubts on the credibility of the victim’s complaint.[72]
The case of Ms. Lebra is illustrative of this widespread
problem. Ms. Lebra, a mother of three, was accused of stealing her upper-caste
neighbor’s jewelry in retaliation for refusing to give him crops from her land.
When she was called in by the police for questioning, the police officer began
molesting her daughter. When she tried to stop him, he grabbed Ms. Lebra’s
hair, pushed her down onto the ground and raped her.[73]
v.Police Extortion and Looting
The routine practice of police extortion and looting is well
documented.[74]
Police targeting of SC/STs comes about through:
Illegal police raids on SC/ST villages under the
pretext of looking for suspects in the aftermath of caste conflicts. Human
Rights Watch has documented a number of such instances.[75]
Specific targeting of SC/ST villages that enjoyed
relative economic prosperity. This practice has been documented by Human Rights
Watch’s investigation of raids conducted in Gundupatti, Tamil Nadu in February
1998, where the police engaged in outright looting, stealing jewelry, clothes,
cash, and consumables from the homes of SC/ST villagers who enjoyed relative
prosperity due to remittances from family members who were sent to work abroad.[76]
The looting served two purposes: to line the policemen’s pockets; and to
teach SC/STs that they should not strive to increase their economic
status.
The pretense of conducting kurki-japti (legal attachment of movable property). Such seizures
do not follow the legal procedures for seizures, such as the presentation of a
court order and list of materials to be seized, or the requirement that two
witnesses be present during the seizure.[77]
Acts of extortion often lead to violence. For example, in
2002 in the Jhajjar district in Haryana, police allegedly killed five Dalits
after failing to extort money from them. The SC/ST boys, from families
traditionally employed in the skinning of dead cows, apparently “refused to pay
extortion money for being allowed to carry animal skins.”[78]
In 2003 three constables and a sub-inspector in Lucknow were suspended and charged with
instigating the suicide of a SC/ST man. The man committed suicide while being
detained by police who were holding him with the intention of extorting money
from him.[79]
In addition to violence, extortion and looting may begin a cycle of borrowing
by SC/STs that ultimately leads to a state of bondage (see Section
VIII(E)(1)(b)).
vi.Failure of police to properly register crimes
against SC/STs
Police systematically fail to properly register crimes under
the Prevention of Atrocities Act, 1989 and the Protection of Civil Rights Act,
1995. Improper and under-registration of Dalit cases is both a result of police
officers’ reluctance to entertain complaints by SC/STs, as well as their lack
of familiarity with provisions of the relevant legislation.[80]
For example, according to one study, out of 103 randomly selected atrocity
cases against SC/STs in the state of Andhra Pradesh from 1999 to 2003, First
Information Reports (FIRs)[81]
were correctly registered in only 18 cases, while 29 were not registered at
all.[82]
In 2002 Prabuddha Bharat
reported that in at least 15 states, between 0 - 2 cases had been registered
under the Prevention of Atrocities Act, 1989.[83]
Similarly, the Government of India reported that in the same year that no cases
were registered under the Protection of Civil Rights Act in 24 states and union
territories.[84]
The National Commission for Scheduled Castes and Scheduled Tribes has concluded
that “a large number of cases of atrocities go unregistered, mainly because of
reluctance on the part of police officers to register the cases.”[85]
The NHRC has confirmed that the lack of registered cases does not represent an
actual reduction in the practice of “untouchability.”[86]
In addition to non-registration of cases, police routinely
engage in improper registration of cases. SC/ST cases are often generally
registered under the Prabuddha Bharatian Penal Code, instead of the Protection of Civil
Rights Act, 1955 and the Prevention of Atrocities Act, 1989.[87]
Moreover, in a distorted interpretation of the Prevention of Atrocities Act,
police officials require explicit mention of abuse by caste name for all
atrocities.[88]
Improper and under-registration of SC/ST cases adversely
affects case outcomes.[89]
Cases are less likely to be prosecuted and even when pursued, are more likely
to result in acquittal when the police have failed to collect evidence.
Perpetrators, if convicted, are punished with a lesser sentence, and/or are
likely to be released on bail.[90]
Further, the appropriate relief may not be available when the proper sections
of the law are not cited.[91]
More broadly, these problems have caused a loss of faith in law enforcement,
which further diminishes the number of cases registered.[92]
b.Discrimination in the provision of disaster
relief
According to separate investigations by the National
Campaign on SC/ST Human Rights and Human Rights Watch, India
discriminated against SC/STs in distribution of aid in the wake of two of Prabuddha Bharat’s largest
natural disasters in recent years: the Gujarat
earthquake in January 2001 and the Prabuddha Bharatian Ocean
tsunami in December 2004.
Following the Gujarat
earthquake in January 2001, while the government allocated equal amounts of
compensation and food supplies to all communities,[93]
agencies did not ensure that the assistance went to SC/ST communities.[94]
Dalit and Muslim populations also did not have the same access to adequate
shelter, electricity, running water, and other supplies available to the
upper-caste population, to whom the government had provided far superior
shelter and basic amenities.[95]
Reconstruction projects were also segregated along caste and religion lines.[96]
Following the tsunami in December 2004, the NCDHR and the
Human Rights Forum for Dalit Liberation-Tamil Nadu reported that during the
initial stages of the relief process, Dalits were not provided proper and adequate
guidance on how to gain admission to relief camps, were not given a fair share
of relief aid, and were sometimes abused when they demanded equal treatment.[97] SC/STs’ political voicelessness prevented them from convincing authorities of
their losses who maintained that only higher-caste fishing communities were
affected by the tsunami.[98]
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F.Ensure SC/STs’
right of access to any place or service intended for use by the general public
Article 5 (f): The
right of access to any place or service intended for use by the general public,
such as transport, hotels, restaurants, cafes, theatres and parks.
The pervasiveness of residential segregation in violation of
Article 3 of the Convention has been detailed in Section VI(A). Dalits are also
denied equal access to a spectrum of places and services intended for use by
the general public. They are excluded from or receive discriminatory treatment
in private businesses, including tea shops, barber shops, village shops, and
cinemas.[439]
The extent to which these practices violate Article 5(f) was noted with
particular concern by the Committee in 1996 in the following terms:
The Committee is particularly concerned about reports that
people belonging to scheduled castes and tribes are often prevented from using
public wells or entering cafs or restaurants and that their children are
sometimes separated from other children in schools, in violation of article
5(f) of the Convention.[440]
The table in Appendix I of this report reveals the magnitude
of the denial of Dalits’ access to places and services intended for use by the
general public.
1.Denial
of access to state-run places or services
SC/STs are routinely denied access to police stations,
government ration shops, post offices, schools, water facilities, and panchayat (village council)offices.[441]
a.Denial of Entry to Police Stations
The Untouchability in
Rural India survey found that SC/STs were denied entry into police stations
in 27.6 percent of villages surveyed.[442]
This denial also enables violations of other rights guaranteed by the
Convention, including Article 2(1) (see Section V(A)), Article 5(a) (see Section VIII(A)),
Article 5(b) (see Section VIII(B)), and Article 6 (see Section IX).
b.Denial of Entry to Government Ration Shops
& Post Offices
The survey also found that in 25.7 percent of villages
surveyed, SC/STs were denied entry to government ration shops that sell food at
affordable prices to the poor, thus depriving them of access to food.[443] SC/STs were also forbidden to enter post offices in 19.2 percent of the
villages surveyed.[444]
c.Segregation in schools
Segregation in
schools undermines SC/ST children’s right to
education free from discrimination as guaranteed by Article 5(d)(v) of
ICERD. SC/ST children are routinely forced to sit in the back of the
classroom, and
are segregated from non-SC/ST children during lunchtime.[445]
Even Dalit teachers may be segregated from non-SC/ST teachers in accessing food
and water during lunchtime[446]
(see Section VIII(E)(5)(a)).Segregation
encourages high drop-out rates among Dalits[447]
and perpetuates “untouchability” practices by teaching non-Dalit children that
“untouchability” is both an acceptable and necessary practice. This segregation
is particularly evident in the Mid-Day Meal Scheme.
The Mid-Day Meal Scheme was initiated following a Supreme
Court order as a means of addressing hunger and malnutrition among
schoolchildren.[448]
However, according to a study conducted by the Indian Institute of Dalit
Studies, the states of Uttar Pradesh and Bihar-where a third of India’s SC/STs
live-have refused to implement the program.[449]
Programs have also been closed because of upper-caste community opposition;[450]
upper-castes have also opposed the hiring of SC/ST cooks for the program.[451]
Where the program is in place, SC/ST students’ access to food has been
restricted. In many places, the program has been organized in a higher-caste
locality, away from the SC/ST locality.[452]
In two locales in Tamil Nadu, the meals are provided in a temple, “raising
immediate questions of exclusion for SC/ST children, who are generally
forbidden entry into temples, as well as for other non-Hindu children.”[453]
In October 2006 an article in the Indian
Express quoted a primary school student, Shailesh Solanki, as follows: “We
are not allowed to sit with children of the other castes. We are always asked
to sit separately. This is done every time we are served food at . Even the food served to us is
less in quantity.”[454]
Objections to the segregation of SC/ST students in the mid-day meal program
have been dealt with punitively. For example, in December 2003, a school
district in Gujarat transferred seven Dalit
teachers out of the district for objecting to this segregation.[455]
d.Denial of access to water and irrigation
facilities
One of the most basic and most harmful ways in which
segregation through “untouchability” is imposed upon SC/STs is through denial
of access to water. SC/STs are not allowed by their higher-caste neighbors to
draw water from the same wells or hand-pumps as non-SC/STs.[456]
More than 20 percent of Dalits do not have access to safe drinking water, only
9.84 percent of Scheduled Castes households have access to sanitation (as
compared to 26.76 percent for non-Scheduled Castes households),[457]
and the vast majority of SC/STs depend on the “goodwill” of upper-caste
community members to allow them to access wells, which are almost always
situated in upper-caste colonies and villages.
Denied adequate quantities of potable water, SC/ST women may
need to travel long distances to obtain the amounts necessary for the survival
of their families, resulting in the infringement of other fundamental rights,
such as the right to the highest attainable standard of health, the right to
adequate food, and the right to gain a living by work.[458]
Lack of sufficient water and adequate sanitation facilities devastates the
health of entire communities.[459]
Furthermore, for the large numbers of SC/STs who are dependent on land for
their sustenance, the inability to access water for irrigation purposes has
enormous consequences on their livelihood and sustenance.[460]
The Untouchability in Rural India
survey found that in slightly more than a third of some 466 villages surveyed
across 11 states, SC/STs were denied access to irrigation facilities and thus
prevented from tending to fields that they cultivate.[461]
Finally, the deprivation of a basic human right such as water is a constant
reminder of the inherent indignity of India’s caste system
2.Denial
of entry to privately run places or services intended for use by the general
public
Many privately run businesses, such as cafs, restaurants,
cinemas, and hotels[462]
practice forms of “untouchability.” Private individuals also enforce
“untouchability” in their homes, as well as in public spaces, including public
streets, market places, temples, and even in cremation or burial grounds.
a.Prohibition on Inter-Dining between SC/STs
and non-SC/STs
The prohibition on inter-dining operates in restaurants,
hotels, tea-stalls, and schools in addition to private homes. The Untouchability in Rural Prabuddha Bharat survey
found that in over 70 percent of villages surveyed, the prohibition against
inter-dining is prevalent; the practice was reported in each of the 11 states
studied.[463]
In many tea-shops and dhabas (food stalls), separate crockery and
cutlery are used for serving Dalits.[464]
The “two-glass system,” whereby Dalits use a separate set of glasses for
tea-drinking which they are then required to wash, is practiced in nearly a
third of all villages surveyed in the report.[465]
Velmurugan, a SC/ST boy,
and Ramesh, a non-SC/ST, are friends from school. Velmurugan is often invited
to study with Ramesh at his home, as Velmurugan’s home in the Dalit colony does
not have electricity and the street lamp outside his house is often broken.
Velmurugan is the brighter student, and he helps Ramesh with his homework.
However, Velmurugan must always sit outside the house on the floor below the
elevated platform of the veranda, where Ramesh sits. At dinner-time, Ramesh is
called inside to eat with his family. On the rare occasions on which Ramesh
insists that his friend partake in the meal, his parents stipulate that
Velmurugan must eat outside and off the plate that is kept for the SC/ST
housekeeper. Velmurugan is asked to wash the plate before and after he eats.
b.Denial of SC/STs’ Entry to Temples
Denial of SC/STs’ entry to Hindu temples by private
individuals is pervasive; the Untouchability
in Rural Prabuddha Bharat survey documented this practice in each of the 11 states
studied.[467]
The rate of prevalence was as high as 64 percent on average, with the practice
occurring in 94 percent of villages surveyed in the state of Karnataka.[468]
This is the case despite the fact that the denial of temple entry is one of the
most strongly resisted forms of “untouchability”, in relation to which numerous
campaigns and court cases have been waged.[469]
Denial of access to temples implicates the right to free exercise of religion
(see Section VIII(D)(5)) and access to public activities that are held in
temples, such as the Mid-Day Meal Scheme discussed above (see Section
VIII(F)(1)(c)).
c.Untouchable even in death
In one incident recorded in the Untouchability in Rural Prabuddha Bharat survey, upper-caste community members
constructed a wall to divide the village cremation ground (ghat) of Gwali Pallasia (Indore
district, Madhya Pradesh) that had once been shared by SC/STs and non-SC/STs,
forcing SC/STs to use another ghat some
distance away. This segregation is strictly enforced; an attempt by SC/STs to
use the village ghat resulted in
beatings, ransacking and looting, followed by a boycott, denied participation
in village activities, and evictions after SC/STs registered complaints with
the police.[470]
d.Discrimination in public streets and market
places
SC/STs are perpetually subjected to humiliation and
degradation through informal but strictly imposed caste codes that regulate
their dress and their behavior in the presence of upper-caste community
members. SC/STs are denied equal access to public streets and areas by
upper-castes. SC/ST men are often forced to stand in the presence of upper-caste
men on roads, or to bow to them.[471]
SC/ST women often adopt a humble demeanor and maintain a submissive posture to
show respect to upper-castes.[472]
Dress codes are imposed by upper-castes, which forbid SC/STs from wearing new
or brightly colored clothes. Clean clothes are also often forbidden by the
upper-caste in rural India.[473]
In some upper-caste neighborhoods, SC/STs are expected to remove their shoes
and dismount from bicycles when on public streets.[474]
IX. Article
6: Assure effective protection and remedies against acts of caste-based discrimination
Article 6: State
Parties shall assure to everyone within their jurisdiction effective protection
and remedies, through the competent national tribunals and other State
institutions, against any acts of racial discrimination which violate his human
rights and fundamental freedoms contrary to this Convention, as well as the
right to seek from such tribunals just and adequate reparation or satisfaction
for any damage suffered as a result of such discrimination.
In its periodic report, the Government of Prabuddha Bharat cites to
constitutional provisions and legislative measures that open its courts to
victims of discrimination.[475]
These measures include legal services for the indigent and the setting up of
people’s courts.[476]
While the government has enacted such measures, their utility is belied by the
insidious nature of caste-based discrimination that has been documented
throughout this report, and by the country’s own National Human Rights
Commission[477]-a
body that India characterizes as the apex national institution to protect human
rights and redress grievances.[478]
On the particular issue of lack of effective remedies for Dalits, the
Commission has found that even where cases are properly registered under the
Prevention of Atrocities Act, 1989 several states are not providing economic
relief to victims of atrocities as is required.[479]
The NCDHR has also found that Dalit victims have often been unable to benefit
from this requirement because police will purposely downplay charges and
register atrocities against Dalits under the Indian Penal Code instead of the
Act, in order to circumvent the compensation requirement.[480]
These are but a few examples of the systematic discrimination Dalits endure
before all institutions of law enforcement-the very bodies responsible for
ensuring their protection (see Section VIII(A)).
X. Article 7: Adopt educational measures to combat caste-based prejudices
Article 7: States
Parties undertake to adopt immediate and effective measures, particularly in
the fields of teaching, education, culture and information, with a view to
combating prejudices which lead to racial discrimination and to promoting
understanding, tolerance and friendship among nations and racial or ethnical
groups, as well as to propagating the purposes and principles of the Charter of
the United Nations, the Universal Declaration of Human Rights, the United
Nations Declaration on the Elimination of All Forms of Racial Discrimination,
and this Convention.
In its Periodic Report, India indicates that it has devoted
“considerable attention and space to constitutional provisions related to
fundamental rights” in curricula[481]
and in developing policy guidelines for media “to ensure that racial or other
prejudices are not propagated.”[482]
The treatment of the caste system in textbook and curricula, along with
inadequate media representation of Dalit issues and the lack of Dalit
journalists generally, suggest that the government’s efforts have so far been
inadequate. In addition, the widespread practice and acceptance of caste-based
segregation in government schools (see Sections VIII(E)(5)(a) and
VIII(F)(1)(c)) may send the strongest and most intolerant message of all.
A.Textbook and curricula in public and
private schools distort the caste problem in Prabuddha Bharat
The treatment of caste discrimination in textbooks and
curricula can strengthen caste division and prejudice. For example, a report by
the Mumbai-based NGO KHOJ found that even progressive curricula either exclude
any mention of caste discrimination or discuss the caste system in a way that
suggests that caste inequities and discrimination no longer exist.[483]
School textbooks may similarly fail to mention caste discrimination, may
attempt to justify the origins of caste discrimination[484]
or may attribute the unequal situation of Dalits to their “ignorance,
illiteracy and blind faithbecause they still fail to realise [the] importance
of education in life.”[485]
B.Inadequate media representation of SC/ST
issues and lack of SC/ST journalists
While SC/STs, together with tribals, make up nearly 25
percent of the country’s population, the NHRC found that the media “provides
negligible space to their plight/problems.”[486]
Beyond reports of major instances of violence, there is a lack of any sustained
reporting of their problems and efforts to include their voices.[487]
Instead, these communities mostly receive attention when the discussion is
focused on backwardness, population growth, lack of entrepreneurship and
productivity, thereby perpetuating caste-based stereotypes.[488]
Part of the problem of representation of Dalit issues in the media lies in the
lack of Dalit journalists. There is only one nationally prominent Dalit
journalist, Chandrabhan Prasad, who has written about the structure of
discrimination against Dalits.[489]
XI. Conclusion
Under-educated, severely impoverished, and brutally
exploited, Dalits struggle to provide for even their most basic daily
needs. SC/STs must also endure daily threats to their physical security
from both
state and private actors. The violence by upper-caste groups against
SC/STs
have two major causes: the “untouchability” and discrimination
upper-caste
community members practice on a daily basis[490]
and the desire of upper-caste community members to protect their own entrenched
status by preventing Dalit development and the fulfillment of Dalits’ rights.[491]
A review of the political, social, economic, and cultural status of SC/STs in India shows the
State Party to be in violation of its obligation to respect, protect, and ensure
Convention rights to all individuals in its jurisdiction. Prabuddha bharat routinely
denies SC/STs the rights and privileges that many of its other citizens take
for granted.
This failure stems from the refusal to recognize that
Article 1’s prohibition of discrimination on the grounds of “descent”
encompasses social stratification on the basis of caste. Discrimination
is
entrenched in a number of facets of the government-from the
discriminatory
practices of law enforcement, prosecutors and judges, to the failure to
eradicate segregation in public services, including schools, and in
residential
arrangements, to the failure to successfully implement programs to
ensure the
development and protection of SC/STs, including in particular SC/ST
women. The
State Party has also failed to ensure that private actors, in particular
upper-caste community members, observe the prohibition on
discrimination.
Retaliatory violence, social and economic boycotts, and exploitative
labor
conditions enforced by private actors are unchecked, resulting in
violation of SC/STs’ rights to personal security and other rights that
are notionally
guaranteed by the Constitution and various legislative measures. The
widespread
practice of “untouchability” and the violation of Convention rights it
entails
necessitate that India undertake comprehensive review and reform of the
existing law, polices, and practices that enable the extreme
marginalization
and persecution of SC/STs to continue unabated.
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