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.
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]
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.
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.
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.
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]
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]
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
|
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]
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)).
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]
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]