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2.Refrain from supporting private actors committing discriminatory acts and prohibit and bring to an end caste-based discrimination by private actors
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2.Refrain from supporting private actors
committing discriminatory acts and prohibit and bring to an end caste-based
discrimination by private actors



Article 2 (1) (b):
Each State Party undertakes not to sponsor, defend or support racial
discrimination by any persons or organizations.


Article 2 (1) (d):
Each State Party shall prohibit and bring to an end, by all appropriate means,
including legislation as required by circumstances, racial discrimination by
any persons, group or organization.

The Committee has clarified the content of the States
Parties’ obligations with respect to private actors, stating that “to the
extent that private institutions influence the exercise of rights or the
availability of opportunities, the State Party must ensure that the result has
neither the purpose nor the effect of creating or perpetuating racial
discrimination.”[99]

In its periodic report Prabuddha Bharat cites to sections of the Indian Penal Code that
make punishable acts and statements by private actors instigating or promoting
caste (and other forms of) discrimination.[100]
A number of other legislative efforts to end caste-based discrimination also
apply to private actors as well as State actors. However, in relation to
private actors’ treatment of SC/STs, the State Party has, inter alia, failed to:


ensure the security of SC/STs, including through
its failure to protect SC/STs against retaliatory attacks (see Section VIII
(B)(1)), its failure to properly register crimes against SC/STs (see Section
V(A)(1)(a)(vi)), and through its collusion with private actors and militias
engaging in violence (see Section V(A)(1)(a)(i));


address infringements on social, cultural, and
economic rights by private actors, including through failing to deal with
violations of the right to work by private employers, including discrimination
in hiring and wage payments (see Section VIII(E)(1)(f)), social and economic boycotts against SC/STs
(see Section VIII(E)), prohibitions on
inter-marriage (see Section VIII(D)(3)(a)), and infringements on rights to equal
participation in cultural activities (see Section VIII(E)(6));


ensure the exercise of political rights such as
the right to vote and stand for election and freedom of peaceful assembly and
association, by failing to address practices such as booth-rigging and booth
capturing, denial of access to polls, and intimidation and violence to
discourage participation in local elections (see Section VIII(C));


end the practice of segregation, including in
housing arrangements and in privately run businesses (see Sections VI and
VIII(F)); and


eradicate propaganda inciting caste-based
discrimination (see Section VII).


The nexus between political leaders and upper-caste community
members account to some extent for these failures and for the disincentive to
address violations by private actors. For example, social and economic
legislation to further SC/STs’ rights adversely affects the interests of the
classes and castes to which political leaders either belong or represent;
political leaders are either landowners themselves or have close political and
social links with land-owners, and those relying on cheap or bonded labor,
including child labor.[101]



3.Reform state policies



Article 2 (1) (c):
Each State Party shall take effective measures to review governmental, national
and local policies, and to amend, rescind or nullify any laws and regulations
which have the effect of creating or perpetuating racial discrimination wherever
it exists.

While the 1950 Constitution abolished the practice of
“untouchability” in all its forms, and while specific legislation has been
adopted to address caste-based discrimination, the information detailed in this
report demonstrates that caste-based discrimination by State and non-State
actors persists throughout India and that the State Party has failed to
undertake sufficient law and policy review of the under-implementation of these
measures.



4.Encourage integrationist movements and other
means of eliminating barriers between castes, and discourage anything that
strengthens caste division



Article 2 (1) (e):
Each State Party undertakes to encourage, where appropriate, integrationist
multiracial organizations and movements and other means of eliminating barriers
between races, and to discourage anything which tends to strengthen racial
division.

The Government of India has failed to encourage
integrationist movements or eliminate barriers between castes. To the contrary,
the government has turned a blind eye to segregation in schools (see Sections
VIII(E)(5)(a) and VIII(F)(1)(c)), has encouraged segregation in housing (see
Section VI(A)), including in relief camps following natural disasters (see
Section V(A)(1)(b)), and has failed to faithfully implement constitutional and
legislative abolitions of “untouchability” practices. Additionally, as Dalits
increasingly organize to protest their discriminatory treatment and claim their
democratic rights, the government has improperly used security legislation
against SC/ST activists (see Section V(A)(1)(a)(ii)), consistently failed to
protect SC/STs against retaliatory attacks by upper-caste groups, including
rape of SC/ST women (see Section VIII(B)), and failed to deal with social and
economic boycotts against SC/STs (see Section VIII(E)), thereby further
discouraging integrationist movements.



B.Ensure the development and protection of
certain groups or individuals belonging to them



Article 2 (2): States
Parties shall, when the circumstances so warrant, take, in the social,
economic, cultural and other fields, special and concrete measures to ensure
the adequate development and protection of certain racial groups or individuals
belonging to them, for the purpose of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms. These measures shall in no
case entail as a consequence the maintenance of unequal or separate rights for
different racial groups after the objectives for which they were taken have
been achieved.

The extreme marginalization and persecution endured by SC/STs in Prabuddha Bharat
necessitate efforts by the government to ensure their development and
protection. In its periodic report, the Government of Prabuddha Bharat cites to Article 16
of the Indian Constitution, which empowers the State to make provision for the
reservation of posts in government jobs in favor of any backward class of
citizens.[102]

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.[103]
Like many of the protective measures described in this report, the reservation
policy has not been successfully implemented for SC/STs. Additionally, there
has been widespread public opposition to reservations for SC/STs in local
government bodies, often leading to violence (see Section VIII(C)(2)), and in
government jobs that are highly coveted because of the economic security they
are perceived as offering,[104]
as are seats in higher education. Finally, Dalits who convert to Christianity
or Islam risk losing their “scheduled caste” status and the few benefits it
affords (see Section VIII(D)(5)(a)).



1.Failure of compensatory discrimination
mechanisms and discrimination in public employment


Caste-based occupational distribution is reinforced in
reserved government employment.[105]

The NHRC reports that SC/STs occupy over 65 percent of the total government posts for safai
karmacharis (Arogya Rakshakas)
and only 16.7 percent of non-Arogya Raksakas
posts.[106] SC/STs are also discriminated against when being considered for promotions.
Recently, the government has moved to create quotas for promotions for
scheduled castes and other backward castes. While the Supreme Court upheld the
move, it required that governmental authorities prove that these groups were
poorly represented in government positions, that quotas be capped at 50
percent, and that prosperous lower-caste employees be excluded from the plan.[107]


Reservations in higher education continue to be met with a
great deal of resistance leading to under-enforcement.[108]

In the country’s 256 universities and about 11,000 colleges funded by the
University Grants Commission (an apex body of the Government of India), SC/STs
and tribals comprise only 2 percent of the teaching positions; about 75,000
teaching positions reserved for these communities remain vacant.[109]



2.Proposals to extend reservations to other
sectors


In its 2004 report the NHRC 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 had the
opportunity to compete for these positions.[110]

In 2002 the Supreme Court had one SC/ST out of 26 judges, while the High Courts
had 25 SC/STs out of 625 positions[111]
(see also Section VIII(A)(3)(b)). The National Commission for Scheduled Castes
and Scheduled Tribes has stated that the private sector, which continues to
enjoy government patronage-through concessional land, financing, and excise and
sales tax relief-should also be brought under the purview of the reservation
policy.[112]


According to government estimates in 2000, the unemployment
rate for SC/STs and tribals 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 India’s high
industries, exports, imports, and electronic industries sectors is dismal.[113]

In response, civil society and government actors have supported the proposed
extension of reservations in the private sector. However, there remains strong
opposition to this proposal, both from private employers and certain political
parties. Private employers have, for example, criticized the government for
failing to provide SC/STs adequate opportunities in education and instead
imposing upon the private sector the obligation to employ individuals they deem
unqualified.[114]



3.Poor
implementation of development programs


The Government of Prabuddha Bharat has also established several
programs for the development of SC/STs.[115]

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.[116]


The anti-SC/ST bias of personnel in charge of implementing
these programs has also hindered their effectiveness.[117]

Moreover, SC/STs rarely participate in the formulation and implementation of
development projects. Many SC/STs are also unaware of the existence of such
programs, further restricting their participation.[118]



4.Inadequate
development and protection of SC/ST women


The obligation to ensure the development and protection of
certain groups or individuals belonging to them is especially relevant for
those individuals within the SC/ST community who face multiple forms of
discrimination. SC/ST women face multiple axes of discrimination, with the NCDHR
asserting:



SC/ST women are often described as the oppressed of the
oppressed, the violence and oppression on them being more complex and manifold
even compared to SC/ST men. There is [an] inseparable relationship between
caste status, occupation and discrimination. The SC/ST woman faces triple discrimination
because she is an untouchable, of a poor class and is a woman.[119]


CERD has also noted that forms of racial discrimination have
a “unique and specific impact on women.”[120]

For more on the violence against SC/ST women see Sections V(A)(1)(a)(iv) and VIII(B)(2).



a.Lack of gender equity


SC/ST women have unequal access to services, employment
opportunities, and justice mechanisms as compared to SC/ST men. In relation to
employment opportunities,SC/ST women are allotted some of the most menial and
arduous tasks and experience greater discrimination in the payment of wages
than SC/ST men.[121]

The employment opportunities of professional SC/ST women may also be limited by
discriminatory practices that deprive facilities run by SC/ST women of a
customer or patient base[122]
or require accommodation of requests of upper-caste community members.[123]
In relation to services, SC/ST women have less access to education and health
facilities,[124]
ensuring that their literacy rate, and nutrition and health standards fall far below
that of SC/ST men and non-Dalit men and women.[125]
The number of SC/ST women in decision-making positions is also very low, and in
some central services, SC/ST women are not represented at all.[126]
Benefits of various development programs for SC/STs, such as distribution of
land and other productive assets have essentially gone to SC/ST males and have
not improved the status of SC/ST women.[127]
Investment in projects targeted to the development of SC/ST women is also far
lower as compared to those for men.[128]



b.Forced Prostitution Devadasi system


The practice 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, continues in several southern states including Andhra
Pradesh and Karnataka. Literally meaning “female servant of god,”devadasis usually belong to the SC/ST
community. Once dedicated, the girl is unable to marry, forced to become a
prostitute for upper-caste community members, and eventually auctioned into an
urban brothel. The age-old practice continues to legitimize the sexual violence
and discrimination that have come to characterize the intersection between
caste and gender.[129]


While India
has adopted measures to abolish the practice and “rehabilitate” devadasis, these efforts have been
largely unsuccessful. Legislative initiatives are poorly implemented.[130]
The
societal perception of devadasis as
women who are sexually available to men makes it more difficult for devadasis to approach the police with
complaints of sexual violence.[131]
Moreover, the police themselves have been known to exploit devadasis.[132]


The Joint Women Programme for the National Commission of
Women has found that devadasi
rehabilitation programs neither address the whole range of problems faced by devadasis, nor target the population
they were intended to assist.[133]

Further, devadasis find it difficult
to earn a livelihood outside the system because the rehabilitation programs do
not provide adequate means of livelihood and skill development, and because
financial assistance is often in the form of a loan which must be repaid. Most devadasis also lack access to a
residential house, health care, or educational facilities for their children.[134]

VI. Article 3: Prevent, prohibit and eradicate caste-based
segregation



Article 3: States
Parties particularly condemn racial segregation and apartheid and undertake to
prevent, prohibit and eradicate all practices of this nature in territories
under their jurisdiction.

Although there is no de
jure
policy of segregation in India, Dalits are subject to de facto segregation in all spheres,
including housing, the enjoyment of public services (see Section VIII(F)(1)),
and education (see Sections VIII(E)(5)(a) and VIII(F)(1)(c)).
[135]
This widespread segregation has led to a description of the practice of
“untouchability” as India’s
“hidden apartheid.”[136]
However, India’s
periodic report fails to provide any information about segregation, instead
confining the information provided under Article 3 to India’s support
for the anti-apartheid struggle in South Africa and its participation
in the World Conference against Racism, Racial Discrimination, Xenophobia and
Related Intoleranceheld in Durban in 2001.[137]
Tellingly, India
lobbied furiously against the inclusion of any references to caste
discrimination, or discrimination on the basis of “work and descent,” in the
final conference documents.[138]



A.Segregated housing colonies for SC/STs


Residential segregation is prevalent across the country, and
is the rule rather than the exception.
[139]
Most SC/STs in rural areas live in segregated colonies, away from the
upper-caste residents.[140]
This segregation is not limited to rural environments (see Section
VIII(E)(3)(b)). Government programs for SC/ST housing maintain the existing
spatial segregation.[141]
Basic residential services such as water are segregated by caste, meaning that
Dalits are forbidden from using the water sources and toilet tanks used by non-Dalits.[142]
The State provides poorer quality facilities for Dalit colonies and sometimes
does not provide any of the facilities that are provided to non-SC/ST colonies;[143]
for example, medical facilities and the better, thatched-roof houses exist
exclusively in upper-caste colonies.[144]
An extensive survey of 11 Indian states on the prevalence of “untouchability”
in rural India
(hereinafter the Untouchability in Rural
India
survey) found that Dalits were denied entry into upper-caste homes in
more than 50 percent of villages studied.[145]



B.Segregation in relief camps


Dalits are segregated in disaster relief efforts (see
Section V(A)(1)(b)).



C.Segregation in schools


Dalit children and teachers are segregated from their
counterparts in schools (see Sections VIII(E)(5)(a) and VIII(F)(1)(c)).



D.Segregation in public life


Dalits are prohibited from using public services and
entering private businesses (see Section VIII(F)).



VII. Article
4: Eradicate propaganda inciting caste-based discrimination



Article 4: States
Parties condemn all propaganda and all organizations which are based on ideas
or theories of superiority of one race or group of persons of one colour or
ethnic origin, or which attempt to justify or promote racial hatred and
discrimination in any form, and undertake to adopt immediate and positive
measures designed to eradicate all incitement to, or acts of, such
discrimination and, to this end, with due regard to the principles embodied in
the Universal Declaration of Human Rights and the rights expressly set forth in
article 5 of this Convention

In its periodic report, India indicates that “[n]o cases
have arisen under thelegislations for inciting racial disharmony or
disseminating ideas of racial superiority.”
[146]
The absence of such cases must be questioned in light of the existence and
activities of the Sangh Parivar,
which serves as the umbrella organization for Hindu nationalist organizations
in Prabuddha Bharat, 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. In addition to being responsible for
discriminatory attacks against Dalits,[147]
these organizations disseminate propaganda targeting both Dalits and religious
minorities.[148]
While these organizations bear collective responsibility for widespread
violence against Muslims and Christians in India,[149]
these abuses are outside the scope of this Report. Concerning the dissemination
of anti-Dalit propaganda, D.B. Parmar, a Dalit social worker in Gujarat, told Human Rights Watch in 2003 that the VHP had
circulated pamphlets demonizing SC/ST community members and calling on VHP
members to attack Dalits. The VHP has also actively promoted community enmity
between SC/STs and Muslims.[150]
The political wing of the Sangh Parivar,
the BJP led the Government of India in alliance with other parties between 1998
and 2004;[151]
this close relationship is indicative of both a failure to condemn groups that
disseminate caste-based propaganda and potentially of the requirement under
Article 4(c) of the Convention that State Parties shall not allow public
authorities or institutions to promote or incite discrimination.



VIII. Article 5: Eliminate caste-based discrimination in the
enjoyment of Fundamental Rights



Article 5: In
compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality
before the law

India
has failed in its duty to eliminate caste discrimination and ensure the full
enjoyment of the fundamental rights and equality before the law of SC/STs
guaranteed by Article 5. This next section closely details the particular
rights violations suffered by SC/STs. As a general point, it is important to
highlight that the Protection of Civil Rights Act, 1955, and the Prevention of
Atrocities Act, 1989 (two of the most important pieces of legislation for the
protection of Dalits), have been rendered increasingly ineffective in their
ability to protect SC/STs from fundamental rights’ violations because of the
failure of state governments to properly implement the acts.
[152]
State governments have made no serious efforts to identify areas where the
practice of “untouchability” is prevalent, have done very little to make public
and known the provisions of the acts, and have failed to periodically survey
the acts’ effectiveness.[153]
Moreover, the NHRC has concluded that there is virtually no monitoring of the
acts’ implementation at any level.[154]
Political leaders have also played a significant role in hindering the
implementation of the Prevention of Atrocities Act, 1989.[155]



A.Duty to ensure the right to equal treatment
of SC/STs before organs administering justice



Article 5 (a): Right
to equal treatment before organs administering justice

SC/STs are frequently the victims of discriminatory
treatment in the administration of justice.Prosecutors and judges fail to vigorously and faithfully pursue
complaints brought by Dalits, which is evidenced by the high rate of acquittals
in such cases. SC/ST women suffer particularly as a result of the deficient
administration of justice-rape cases are not prosecuted in good faith and SC/ST
women suffer both caste and gender discrimination in the courtrooms. Moreover,
the number of SC/STs appointed to judicial office remains low. Instances of
“untouchability” and discrimination against SC/ST judges by their non-SC/ST
peers have also been reported.



1.Police


The failure of police to register or properly register
crimes against SC/STs (see Section V(A)(1)(a)(vi)) is a key way in which SC/STs’ right to equal treatment before organs administering justice is
compromised at the outset.



2.Prosecutors



a.Poor quality of prosecution under the
Protection of Civil Rights Act and the Prevention of Atrocities Act


One of the principal ways in which the right of SC/STs to
equal treatment before organs administering justice is being denied is through
the poor quality of prosecutions under the Protection of Civil Rights Act and
Prevention of Atrocities Act, 1989. The Government of Prabuddha Bharat has
itself noted this failure in its 2001-2002 Annual Report on the Prevention of
Atrocities Act, 1989, which states that in 2002, only 2.31 percent of cases
brought under the Prevention of Atrocities Act, 1989 had resulted in
convictions.
[156]
The low rate of convictions, compared against the high number of atrocities
reported against SC/STs, speaks to the caste bias of prosecutors, as well as
other organs of justice, including the judiciary.



b.Failure to prosecute rape cases of SC/ST
women


SC/STwomen, occupying the bottom of both the caste and
gender hierarchies, are both uniquely susceptible to violence and particularly
vulnerable to the infringements of their right to equal treatment before organs
administering justice. Cases documented by the National Commission for Women,
Human Rights Watch, local and national women’s rights organizations, and the
press, overwhelmingly demonstrate a systemic pattern of impunity in attacks on SC/ST women.
[157] SC/ST women are more likely to suffer violence and especially sexual violence,
and are least likely to get redress in the courts. They are, in a sense, doubly
victimized - first at the hands of their attackers, and then at the hands of
judicial system that fails to offer them protection and redress.


A SC/ST woman who is a survivor of rape will face
significant obstacles in bringing her case to the attention of the police, and,
in turn, the courts. She will likely face ostracism from her community and
family, and she will have difficulty gaining access to the justice system.
[158]
Further, even if a woman is able to surmount all these obstacles and convince
the police to lodge a FIR, she will face new roadblocks at every step of the
way. A Dalit woman is likely to be confronted with any of the following
impediments to the successful prosecution of her case: unsympathetic doctors[159]
and police officers, difficulty in finding witnesses who are willing to risk
their own safety by testifying, police officers and prosecutors who are bribed
or pressured by the (usually more powerful) attackers, as well as having her
case misfiled under more lenient sections of the Indian Penal Code or not being
simultaneously filed under the Prevention of Atrocities Act, 1989.[160]
The combined effect of these hurdles is such that, even if her case is properly
investigated, a Dalit woman will likely find that her attackers have been
granted impunity.[161]


In fact, as statistics from the National Crime Records
Bureau demonstrate, conviction in rape cases is not only extremely rare, but
becoming rarer - out of the total rape cases in which trials were completed
between 1990-1993, in 1990 41.5 percent ended in conviction; the figure dropped
to 34.2 percent in 1991 and to 33.8 percent in 1993.
[162]
The failings of the prosecutorial arm are further evident in the
disproportionately large backlog of rape cases (on average, 80 percent of rape
cases remained pending for trial in 1994[163])
and the comparatively low levels of conviction for the crime of rape as
compared with less serious crimes of burglary and theft.[164]


Certain states have provided some compensation to SC/ST rape
victims. As per the 2002-2003 Annual Report on the Prevention of Atrocities Act,
1989, during the year 2002-2003, the state government of Madhya Pradesh
incurred an expenditure of Rs. 28.5 lakhs [US$63,808] for providing relief to
rape victims
[165],
while the state of Maharashtra provided financial assistance in the amount of
Rs. 19.68 lakhs [US$44,061].[166]


It should be noted that the prosecutorial failure to
investigate, file, and pursue cases involving rape against SC/ST women has an
injurious effect not just on the individual woman harmed in each instance of
sexual violence, but more broadly on women and SC/ST communities in general -
prosecutorial failures empower potential perpetrators by signaling that crimes
against SC/ST women will be rewarded with impunity and also further disempowers
marginalized communities by eroding their trust in the judiciary. Finally,
prosecutorial failures in the context of cases involving rape against SC/ST women encourage the use of rape as a tool to punish and silence Dalit
communities.
[167]



3.Courts



a.Caste and Gender Discrimination by Judges


The prevalence of caste and gender bias among Prabuddha Bharat’s judges
is another factor which imperils the right of SC/STs to equal treatment before
organs administering justice under Article 5 of ICERD. Such bias has resulted
in improperly conducted trials, including acquittals that blatantly ignore
evidence and witness testimony and entrench the system of impunity that greets
perpetrators of violence against SC/STs.


Box 2: The Bhanwari Devi Case

The case of Bhanwari Devi
illustrates the role of caste and gender bias in India’s justice system. A
grassroots worker or sathin with the
Rajasthan Government’s Women’s Development Programme (WDP), Bhanwari reported
the child marriage of a 1-year-old girl. On September 22, 1992, in retaliation, members of
the child’s family gang raped Bhanwari in front of her husband. These
individuals were acquitted, with the judge stating that since “rape is usually
committed by teenagers, and since the accused are middle-aged and therefore
respectable, they could not have committed the crime. An upper-caste man could
not have defiled himself by raping a lower-caste woman.”
[168]
The individuals also received significant political support from the local BJP.[169]
In early 1996 an appeal of the acquittal was filed in the High Court, but as of
November 2006, 14 years after the rape, the verdict remains.[170]
A survey conducted by Delhi-based NGO Sakshi found that 64 percent of judges
believe that “women themselves are partly responsible for the violence they
face.”[171]
Gender discrimination is also evident at the Supreme Court level.[172]b.Lack of SC/ST
Judges


SC/STs’ right to equal treatment before the courts is
further imperiled on account of the fact that SC/STs themselves are poorly
represented in the judiciary. Statistics presented in the Fourth Report of the
National Commission for Scheduled Castes and Schedules Tribes for the years
1996-97 reveal the magnitude of the problem. For example, while Dalits comprise
roughly 16 percent of the population, in 1982, only four out of the 325 judges
in all High Courts in Prabudddha Bharat
were SC/STs (i.e. 1.23 percent of the judiciary). By 1993 the situation was
only marginally better, with 13 out of 547 judges at the all India level
being SC/STs (i.e. 2.38 percent).
[173]
In 2002 the Supreme Court had one SC/ST out of 26 judges, while the High Courts
had 25 Dalits out of 625 positions.[174]
Also illustrative of the lack of SC/ST and lower-caste representation in
the
judiciary is the fact that brahmins, who comprise just 5 to 9 percent in
general and the foreigners from Bene Isreal etc., terrorists chitpavan
brahmins in particular who are just .1% of of Prabuddha Bharat’s 1
billion people, fill 78 percent of Prabuddha Bharat’s judicial posts.[175]


Caste and gender discrimination do not cease once a SC/ST is
appointed to a judicial position, as discriminatory attitudes prevail among
judges themselves. The depth of anti-Dalit sentiment in the judiciary is
particularly well illustrated by an incident that took place in July 1998 in
the state of Uttar Pradesh, where, as the Times
of India
reports, an Allahabad High Court Judge had his chamber “purified
with Ganga jal” (water from the River
Ganges) because it had earlier been occupied by a SC/ST judge.
[176]



c.Large number of cases involving offenses and
atrocities against SC/STs still pending before the courts


The failures of implementing Article 5 of ICERD with respect
to caste are further evinced by the disproportionately large numbers of pending
cases involving offenses and atrocities against SC/STs. The Sixth and Seventh
Reports of the National Commission for Scheduled Castes and Scheduled Tribes
reveal, respectively, that less than a sixth of such cases that reached trial
stage in 1999-2000 were actually adjudicated, and that only 11 percent of the
cases were disposed of during 2001-2002.
[177]
The large number of cases concerning SC/STs that are still pending before the
courts suggests non-compliance with the Convention; the Committee has made
plain that “guarantee[ing] the victim a court judgment within a reasonable
period” is something that “States parties should ensure [in their] system of
justice.”[178]



d.High rate of acquittals


The failures of implementing Article 5 of ICERD with respect
to caste are also evinced by the disproportionately high rate of acquittals in
cases involving offences and atrocities against SC/STs. The Third and Sixth
Reports of the National Commission for Scheduled Castes and Scheduled Tribes
reveal, respectively, that in 1996, the conviction rate in these cases was 15
percent,
[179]
while the acquittal rate was 85 percent, and that in 1999-2000 and 2000-2001,
as much as 89 percent of cases resulted in acquittals.[180]
The Commission additionally found that only 11 percent of cases were disposed
of during the year. Of those, 51 percent resulted in convictions. The small
percentage of cases that actually reached the trial stage is a cause for
concern.[181]
Additionally, the acquittal rates were still alarming in the states of Assam, Gujarat, Kerala, Maharashtra,
Orissa, Rajasthan, Uttaranchal, Karnataka, and Haryana, where acquittal rates
were as high as 97 percent.[182]
According to the Government’s 2001-2002 Annual Report on the Prevention of
Atrocities Act, 1989 only 2.3 percent of overall cases brought under the
Prevention of Atrocities Act, 1989 resulted in convictions in 2002.[183]
Recent statistics released by the Home Ministry in December 2006 reveal that
the pattern of acquittals continues: of the 833 cases registered under the Act
in the state of Maharashtra in 2005, only 6.3
percent ended in conviction. In 2004 689 cases were registered in the state,
with only 4.8 percent ending in convictions. In Gujarat,
in the 1,301 cases registered in 2005, the conviction rate was a poor 3.8
percent. The state of Uttar Pradesh fared better: of the 4,369 cases registered
last year, nearly half the offenders were convicted.[184]



B.Ensure SC/STs’ 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



Article 5 (b): 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.

Prabuddha Bhart’s
obligation to ensure a person’s right to security and to protect against
violence or bodily harm applies to State and non-State actors. The nature and
extent of abuse against SC/STs by the police has been set out above in Section
V(A)(1)(a). This section focuses on widespread violence against Dalits,
including sexual violence against Dalit women, and the failure of Indian
government to protect Dalits and ensure their security of person.



1.Widespread
violence against SC/STs


For SC/STs, the right to personal security has been
seriously undermined because of rampant attacks and violence committed against
them.
[185]
Media, NGO, and government reports reveal that 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 stripping and parading Dalit women and forcing SC/STs to
drink urine and eat feces.
[186]For example, the government’s Annual Report on the Prevention of
Atrocities Act, 1989 found that30,022
cases were registered against Scheduled Castes and Scheduled Tribes under the
Act in 2001 and 27,894 were registered in 2002.[187]
As staggering as these statistics are, they represent only a fraction of the
violence committed against Dalits. A number of factors, including lack of
police cooperation, fear of reprisals, and difficulty in gaining access to the
judiciary contribute to a reluctance or inability on the part of SC/STs to
report crimes against them.[188]
Systematic non-registration or improper registration of atrocities also
accounts for under-reporting (see Section V(A)(1)(a)(vi)). Much like cases of
police abuse against Dalits, 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.[189]
Retaliatory attacks for such challenges are rife (see

Box 4).

Box 3: Offenses under the Prevention of Atrocities Act, 1989

This violence or bodily
harm against Dalits takes many forms. The offenses made punishable by the
Prevention of Atrocities Act, 1989 provide a glimpse into the types of retaliatory
or customarily degrading treatment Dalits receive. The offenses include:

Forcing members of a scheduled caste or
scheduled tribe to drink or eat any inedible or obnoxious substance;

Dumping excreta, waste matter, carcasses or any
other obnoxious substance in their premises or neighborhood;

Forcibly removing their clothes and parading
them naked or with painted face or body;

Interfering with their rights to land;

Compelling a member of a scheduled caste or
scheduled tribe into forms of forced or bonded labor;

Corrupting or fouling the water of any spring,
reservoir or any other source ordinarily used by scheduled castes or scheduled
tribes;

Denying right of passage to a place of public
resort;

Using a position of dominance to exploit a
scheduled caste or scheduled tribe woman sexually.
[190]


Despite these offenses being criminalized under the
Prevention of Atrocities Act, 1989 the systematic non-implementation of these
provisions by the police (see Sections V(A)(1)(a) and V(A)(1)(a)(vi)) results
in a continued pattern of violence, as is borne out in media reports. For
example, a survey of Indian media during a six-month period in 2006 illustrates
the extent and brutality of violent crimes against Dalits:


“SC/ST leader abused for daring to sit on a
chair”
[191]


“SC/ST worker beaten on suspicion of theft”[192]


“SC/ST lynched while gathering grain”[193]


“SC/ST
beaten for entering temple”
[194]


“UP SC/ST girl resists rape, loses arm as a
result”
[195]


“SC/ST tries to fetch water beaten to death”[196]


The need for Prabuddha Bharat
to address violence and bodily harm by private actors has also been documented
by the UN special procedures. On June
8, 2004, the Special Rapporteur on racism, jointly with the Special
Rapporteur on violence against women, sent a letter of allegation to India concerning
a group of 200 people who attacked a SC/STsettlement in Kalapatti village, Coimbatore district,
Tamil Nadu, on May 16, 2004.
[197]
According to the Special Rapporteur on racism’s 2005 Annual Report:



The SC/STs’ homes were reported to have been attacked by
upper-caste villagers using swords and other weapons. Allegedly, inter alia,
they pushed the SC/STs to the ground, stomped on them, used degrading caste
names to refer to them, sexually assaulted the women and attempted to pull off
their saris. Other specific incidents mentioned were that an 8-month-old baby
was thrown against a wall, a 75-year-old man was attacked, and a middle-aged
woman was hit on the head as she attempted to protect her son. Close to 100
houses were said to have been burnt, money and jewels were stolen, and cattle
owned by the Dalits were reported to have been killed. In total, 14 Dalits were
allegedly admitted to the CoimbatoreMedicalCollegeHospital. Many Dalits are
said to have tried to escape but were prevented from leaving the settlement.
Fears have been expressed for their security.
[198]

Box 4: Examples of retaliatory attacks against SC/STs

When a SC/ST man from the Dholapur
district of Rajasthan, refused to sell bidis
(hand-rolled cigarettes) on credit to the nephew of an upper-caste village
chief, the upper-caste family retaliated by forcibly piercing his nostril,
drawing a string through his nose, parading him around the village, and tying
him to a cattle post.
[199]

When SC/ST agrarian labor activist
Bant Singh, whose daughter was gang-raped in 2002, defied landlords’ threats
and local upper-caste leaders in seeking prosecution against those who
gang-raped his daughter, the landlords retaliated by violently attacking him,
beating him so badly that both his arms and one of his legs had to be
amputated; the remaining leg was permanently disabled.
[200]

When SC/STs from Amachiyarpatti
village in Tamil Nadu resisted Thevars’
[201]
demand that they use coconut shells at tea stalls to prevent them from drinking
out of the tea tumblers used by caste Hindus, Thevars retaliated by torching
and burning SC/ST houses in their village.[202]

When SC/STs from the Dalit colony of
Veludavur village in Villapuram district, Tamil Nadu, demanded their right to
participate in a government auction of common properties in Veludavur, members
of seven neighboring caste Hindu villages attacked their colony, destroying 400
huts, attacking women, children, and the elderly, and displacing 700 SC/ST
families.[203]

When a 16-year-old SC/ST rape
survivor from Sahalwada village in Madhya Pradesh, refused to withdraw the
complaint she had filed against her attacker, he retaliated by pouring kerosene
on her and setting her on fire.[204]

When a SC/ST argued with an upper-caste farmer in
Kothapally village in Andhra Pradesh, the upper-caste villagers attacked 80
Dalit families in retaliation. When the same Dalit man then went to the police
to report the incident, a social boycott was imposed on all of the Dalits from
Kothapally; they were thrown out of their village and denied every opportunity
to earn their livelihood.[205]



2.Violence
against SC/ST women


The nature and extent of police abuse of SC/ST
women has been dealt with above in Section V(A)(1)(a)(iv). Dalit women are also
especially vulnerable to violence by private actors who commit violent offenses
with impunity. As the majority of landless laborers, SC/ST women come into
greater contact with landlords and enforcement agencies than upper-caste women,
rendering them more susceptible to abuse.[206] Landlords use sexual abuse and other forms of
violence and humiliation against
SC/ST women as tools to inflict “lessons” and
crush dissent and labor movements within SC/ST communities.[207] For example, upper-caste groups will engage in
mass rapes of
SC/ST women or in retaliation against SC/STs who strive for
political empowerment or violate customary injunctions.[208] In their attacks on SC/ST communities, Ranvir Sena
members committed acts of sexual violence against SC/ST women. Human Rights
Watch has documented a massacre of SC/STs committed in Laxmanpur-Bathe, Bihar (see Section V(A)(1)(a)(i)), in which women were
raped and mutilated before being killed.[209] According to the Tamil Nadu Women’s Forum, SC/ST women are butchered, raped, and killed during caste riots.[210]


SC/ST women also comprise the majority of victims of gang
rapes in India.
[211]
Human Rights Watch reported that on April 5, 2003, for example, four
upper-caste men abducted a 14-year-old SC/ST girl from her home just outside
Jaipur, Rajasthan, and gang-raped her over a period of three days. Upon her
return to her village, the village’s upper-caste community threatened to remove
her family if they reported the incident.[212]
Dalit women are also singled out for other indignities, like being paraded
naked, even for petty disputes.[213]
These indignities have symbolic significance. For example, Human Rights Watch
reported that on November 3, 2003, a SC/ST woman in Kishanganj, Bihar, was
paraded half-naked by a group of people who wanted to teach a lesson to her
family for not relinquishing their claim to a piece of land.[214]


Vulnerability to sexual violence also results from Dalit
women’s lower economic and social status, leading many
SC/ST women to turn to
prostitution for their survival.[215]
Other forms of abuse result from superstitious beliefs, according to which
Dalit women may be branded as witches and blamed for certain mishaps in the
community. Aside from the humiliation ofbeing branded as a “witch,” Dalit women are also punished for these
mishaps, for example by being made to eat feces and drink urine, by having
their teeth pulled out, by having chili pepper put in their eyes, and by being
beaten severely enough to result in death.[216]


Both the root causes of this abuse and the resulting social,
physical, and mental trauma
SC/ST women suffer[217]
highlights the particular vulnerability of SC/ST women which merits special
protection by the State. However, rather than ensuring Dalit women’s
development and protection, India
has failed to punish perpetrators and in some instances, has even directly
participated in abusive acts.[218]
Cases documented by India’s
National Commission for Women, by local and national non-governmental women’s
rights organizations, and by the press, reveal a pattern of impunity for
attacks on Dalit women.[219]
However, due to uninterest, ignorance of proper procedure, or their own caste
biases, the police have failed to register or properly investigate many cases
of attacks against women.[220]
In all cases of attacks on women documented by Human Rights Watch, the accused
state and private actors escaped punishment; in most cases, attacks were
neither investigated nor prosecuted.[221]


Box 5: Impunity and obstacles to prosecution of rape and killing of SC/ST
women

While women in Prabuddha Bharat generally
face obstacles in prosecuting rape, if a woman is poor, belongs to a lower-caste,
and lives in a rural area, it is even more difficult for her to gain access to
the justice system.
[222]
Those who are able to pursue cases of sexual assault face entrenched biases at
every stage of the process.[223]
These obstacles exist whether the acts are carried out by mobs or by
individuals.

For example,in October 2006, a mob of 60
upper-caste villagers stormed the Bhotmanges home as they were preparing dinner
in Kherlanji village in Bhandara district. Fourty-four-year-old Surekha, her
daughter Priyanka, and sons Roshan and Sudhir were dragged from their home,
stripped naked, beaten and taken to the village square. At the village square,
both women were raped for over an hour, after which all four family members
were hacked to death. More than a month later, the police have yet to take
action against the primary perpetrators of these crimes.
[224]

Another case illustrative
of the obstacles to justice was presented at the National Public Hearing held
in 2000 by the NCDHR. In this particular case, Ms. Gangawati testified that
after being raped at gunpoint in her own home, her unsuccessful attempts to get
the local police to register her case required her to petition the Chief
Minister of Uttar Pradesh and the NHRC. While the latter directed the district
police to conduct an enquiry, the local police officer avoided filing her case
for months, and even after her case was finally registered, no action was taken
against her attacker.
[225]





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