nhrc report on caste violence

8/20/2019 NHRC Report on caste violence

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SECTION – I

VVVVVIOLENCEIOLENCEIOLENCEIOLENCEIOLENCE::::: TTTTTHEHEHEHEHE SSSSSOCIALOCIALOCIALOCIALOCIAL EEEEEDIFICEDIFICEDIFICEDIFICEDIFICE

Orga nised violence directed a ga inst members of identified groups/commu nities h a s been

a distinct feature of the Indian society for quite sometime. Though violence does take

place in the process of change in many societ ies, and part icularly so when radical

alterat ions take place in the exist ing social and power relat ions, i t usually does not

choose its victims on the basis of birth in a given social entity. In India, however, this

is precisely wha t ha s defined the char a cter of violence in rela tion to certa in groups. The

countr y h as wit nessed increase in both cast e an d communa l violence since independence

w hich t he processes of modernizat ion ha ve not a bat ed. Ra ther, in some respects, it h as

been intensified by them. While communal violence is a relatively recent phenomenon

rooted in t he events leading to part it ion, caste violence ha s a much longer history a nd

a f irmer anchorage. I t a lso has the dist inct iveness of being embedded in the social

structure of the dominant community i tself which lays down the norms of conduct

between its more privileged groups and the subdued and subordinated segment . I t is

this a ge old caste relat ionship in Hindu S ociety w hich is get t ing disturbed by pressure

of forces both from a bove a nd below. The frequency a nd in tensit y of violence is a n offshoot

of desperate at tempts by the upper caste groups to protect their entrenched status

a gainst the process of disenga gement an d upwa rd mobility am ong lower cast es result ing

from affirma tive act ion of Sta te P olicy. The violence ta kes bruta l forms an d t urns into

acts of atrocities against a whole group of people, such as massacre, rape, burning of

houses an d th rough more subtle meth ods like social boycott, w hich a re intend ed to block

their access to basic necessities and services. This phenomenon has to be positioned in

the la rger perspective of St at e-Society dyna mics in order to understa nd w hy it ha ppens

and how it can be checked.

The target of caste violence is largely the people belonging to the lowest rung in

the hierarchy of Hindu social order, who are known as the ‘untouchables’, or ScheduledCastes bound to the rest of the caste society in immutable relat ionship of rights and

obliga tions. The pra ctice of “unt oucha bility” cha ra cterises th is relat ionship. The emergence

of untouchabili ty in the caste based social order has a complex history with li t t le

consensus or clarity on its origin 1. While some have at tributed it to the growth of

agricultural civil izat ion in the country and the emergence of agricultural castes, who

1Na val, TR, La w of P revention of Atrocit ies on Scheduled C ast es an d S cheduled Tribes (2000),

p. 4-7


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2 Report on P revention of Atrocities Again st SC s & STs

needed a ssured access to ma nua l labour2 for agr icultura l operat ions, others ha ve tra ced

its genesis to expansionist phase of Indian civilization which led to the conquest of

indigenous inhabita nts a nd t heir consequent ensla vement by th e Arya ns. The ‘shudra s’

in th e social hiera rchy tow a rds t he end of th e Rig Vedic period represent th ese ensla ved

persons who were assigned inferior status, which was related to their birth in that

community 3. Wha tever be the explana t ion of i ts origin, the inst itut ional st ructures wh ich

governed social conduct in the society are subsumed under the nomenclature of ‘Caste

Syst em’, w hich broadly represents a vert ical ar ra ngement of social division of the H indu

population into four major groups, known as ‘Varnas’. At the top of this arrangement

are the Brahmana (priest ly class) , followed by ‘Kshatriya ’ ( the warrior class) , and

‘Vaishya’ (trading and artisan class). ‘Shudra’ (labouring and service class) stood at the

bottom of hierarchy 4. The ‘untouchables’ w ere not a par t of th is Scheme. H owever, over

a period of time, the exigencies of situation led to the addition of a Fifth group to this

cla ssif icat ion wh ich w as not given a ny ‘cast e sta tus’ as such, but nonetheless integra lly

linked to th e social order a nd is referred t o as ‘unt oucha bles’ or ‘outcasts’. The membersh ip

of this group was determined by birth and could not be changed by individual effort or

socia l accepta nce. These four ‘Va rn a s’ subseq uent ly tr a nsform ed/got divided int o hundr eds

of sub-cast es, known a s ‘jati’ , ea ch ‘jati’ ha ving it s own norms of social conduct. The cast e

structure is characterised by six important features 5:

1. Segmented d ivis ion of Society,

2. H ier ar ch y,

3. Rest r ict ions on feeding and socia l intercourse,

4. Lack of unrest r icted choice of occupat ion,

5. Civil an d religious disa bili t ies an d privileges of different sect ions, a nd

6. R es t r ict ions on m a r r ia g e

The segmenta tion of society int o four gr oups represents a tight ly divided a rra ngement,

of both sta tus a nd occupa tion wh ich is l inked to each other in a hierarchical r elat ionship.

B ra hmins occupy the t op slot in t he hierar chical ladder a nd ‘untoucha bles’ the bottom.

As t he cas te h ierar chy opera tes a round t he concepts of ‘purity’ an d ‘pollution’, ‘unt oucha bles’

a re considered a s t he most degra ded beca use th ey perform polluting t a sks. The restr ictions

on feeding and social intercourse incorporates code of conduct for each caste on what

one can see and cannot see, what one can and cannot touch and what can or cannot

be accepted by a person of one caste from a person of another caste. Restrictions on

occupat ion ar e intended to prevent a ny destabilizat ion of hiera rchy6

. Civil an d religiousdisabili t ies mandate ‘untouchables’ to l ive at a distance from the main village, not to

2Krishna n, PS : Keynote address delivered at the Nat iona l semina r on Implementat ion a nd Impact of SCs/

STs (Prevention of Atrocities) Act, 1989 on the S cheduled Ca stes orga nised by C entre for S ocial Sy stem,

Sch ool of Social S ciences, J NU , Ma rch 22-23, 2000.3Naval, op. cit . , p. 4

4Hu ma n right s Wat ch, Br oken P eople, Ca ste Violence aga inst I ndia ’s unt ouchables, 1999; p. 25

5Ghurye, G.S . quoted in Bhopal Document - Chartering a New Course for Dalits for the 21

st century,

Government of Madhya Pradesh-March 2002, pp 16-176Bhopal Document, op. cit . , p. 16


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Violence: The Social Edifice 3

draw water from village well , enter the village temple, wear the sacred thread, acquire

education or recite the religious texts. Untouchables are required to undertake the most

pollut ing a nd degrading occupations, such a s clea ning fi l th, including h uma n excreta ,

f laying dea d a nima ls, digging gr a ves, etc. The a bsolute restrict ion on m a rriages outside

the caste and, in fact, even sub-castes ensures that there is no mobility from one group

to another. Thus, the untouchables face total segregat ion in all matters, subjected to

a cute discrimina t ion, do the most menial a nd degra ding jobs a nd ha ve no right to cha nge

their status. The transition from caste disabilities to commission of atrocities, has been

traced to 3rd and 4t h Century A.D. when varna system faced crisis of deviat ions from

th e prescribed social conduct a nd t he need w a s felt for coercive measures t o enforce cast e

discipline an d bounda ries. The King emerged as th e Uph older of the syst em. Those wh o

violated the system were subjected to secular punishment as well as performance of

various rituals7. This is how physical violence by higher castes on the lower castes was

sa nctified. This s itua tion continued for cent uries. The persons of suppressed commun ities

acquiesced in this arrangement, as there was no option for them to escape from it .

Perhaps they may have been made to believe that l i fe in the next birth may be better

if discipline imposed by existing status is adhered to.

During the medieval period some saints, Kabir , Nanak, Ravidas were crit ical of

existing social order and preached a religion of love, compassion and consideration and

a more tolerant social arrangement. But there was no protest against the caste system

a nd its socia l ra mifica t ions as such. The prevailing la ws continued t o support the cast e

syst em an d th e rulers upheld them. D uring t he Muslim Rule in In dia , some people from

the suppressed communit ies might have converted to Islam as a way out of their

degraded sta tus, but t here is no evidence that the Muslim rulers ever t ried to interfere

with the Hindu caste system or reform it . Their strategy of governance may have

prevented them from doing so. The B rit ish esta blished the r ule of law wh ich w a s ba sed

on a concept of equality. The law applied to all persons irrespective of their position.

This w a s a ma jor depa rture from t he pre-B rit ish judicial syst em w here caste dist inct ions

were not only recognized but a lso enforced and differential punishment was awarded,

for the same offence, depending on the caste status of the offender. In any case, the

suppressed castes neither had the courage nor resources to seek any relief under the

new system. But even in the Brit ish period caste dist inct ions remained relevant in

ma tters relat ing to Hindu La w. The general features of the legal syst em did not cha nge

th e sta tus of low er ca stes, a s the overa ll Br itish policy remain ed one of non-interference8.

In matters such as entry to temples, r i tual pollut ion and rights to exclusiveness, the

Courts supported the customary laws of Hindus and their view was upheld even at the

level of Privy Council. There was, however, some difference in the attitude of Courts

towa rds secular public facil it ies such a s str eets a nd roads w here such disa bili t ies were

not enforced. However, the Courts did not provide any support for removing caste

disabili ty in matters which came up before their considerat ion 9.

7Naval, op. cit . , p. l0

8Naval, op. cit . , p. 13



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On a social plane, the period witnessed many reform movements in Hindu Society,

such a s Brahmo Samaj , P ra r thana Samaj , Arya Samaj , Ramakr ishna Miss ion ,

Theosophical Society, the Social Conference which attacked the caste system and some

other feat ures of H indu social order. These movement s, wh ile support ing th e four va rna s,

condemn ed the inhuma n pra ctice of unt oucha bility. Lat er, during th e freedom movement,

G an dhiji contributed a grea t deal t ow ar ds a bolit ion of untoucha bili ty a nd la ter founded

the All India Harijan Sangh for this purpose. In south, self-respect movement was

launched against Brahminical tyranny. I t was Dr. Ambedkar, who took up the f ight

against caste oppression more vigorously through the All India Depressed Classes

Federa tion. Around 1909, the issue of untoucha bility a cquired political sign ifica nce wh en

proposals w ere ma de for special legislat ive representa tion for untouchables. In 1917 the

Congress passed anti-disabilities resolution. In the 1930s anti-disabilities bills were

introduced in C entra l Legislat ive Assembly, Ma dra s a nd B ombay Legislat ures. In 1938,

Madras Legislature passed the f irst comprehensive law to remove social disabili t ies

making it an offence to discriminate against the untouchables. In fact , in the publicly

support ed facilities, such as r oads, w ells, tr a nsport vehicles, etc. a s a lso in other secula r

institut ions, such a s resta ura nts, hotels, shops, th e law a lso prohibited judicial enforcement

of any customary right or disability. This was followed by similar legislations in other

provinces. Later, init ia t ive was also taken by Madras to facil i ta te temple entry for

Scheduled Ca stes by ma king it a crimina l offence for any person to prevent a ny H indu

from entering or worshipping a t a ny t emple. Simila r Acts were pass ed in oth er provinces

la ter10.

H owever, the B ritish G overnm ent n ever took positive action to improve th e condition

of shudras and untouchables and to remove their disabili t ies. Apparently , the larger

considerat ion of consolidat ing their rule prevented them from interfering with the

customa ry pra ctice a ssocia ted w ith ind igenous religions. Thus, a t th e time of independence,

the tr adit ional st at us of untoucha bles a nd caste disabili t ies, wh ich prevented th em from

leading a life of dignity and self-respect continued to prevail. It was, therefore, left to

the C onstitut ion of India aft er independence to ma ke the f irst comprehensive brea k w ith

the past and to pronounce the policy of abolition of untouchability and declare total

equality for t he shudra s a nd unt ouchables in Indian society. The Constitut ion a lso la id

down means to achieve these objectives.



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SECTION – II

CCCCCOMMITMENTOMMITMENTOMMITMENTOMMITMENTOMMITMENT TTTTTOOOOO EEEEEQUQUQUQUQUALITYALITYALITYALITYALITY: S: S: S: S: STRATRATRATRATRATEGTEGTEGTEGTEGYYYYY AAAAANDNDNDNDND AAAAAPPROPPROPPROPPROPPROAAAAACHCHCHCHCH

The Scheme of the Constitut ion r eflects a thr ee-pronged str at egy for cha nging t he sta tus

of Scheduled Ca stes [and t he Scheduled Tribes] bas ed on t he tr a ditiona l social order.

This consists of:

(a) P rotect ion: Lega l/Regula tory measures for enforcing equal i ty an d removing

disabilities; Providing strong punitive action against physical violence inflictedon them; Eliminat ing customary arrangements which deeply hurt their dignity

and person; Prevent ing control over f ru i t s of their labour and s t r ik ing a t

concentr at ion of economic assets an d resources a nd set t ing up a utonomous wa tch-

dog inst itut ions to safeguard interests, r ights and benefits guaranteed to them.

(b) Compensa tory discriminat ion: Enforcement of reservat ion provisions in public

services, representative bodies and educational institutions.

(c) Development : measures to br idge the wide gap between the S cheduled Ca stes and

other commu nit ies in their economic conditions a nd social sta tus, covering a llocat ion

of resources and distribution of benefits.

This s t ra tegy was subsequent ly opera t iona l ised in the Sta te pol icy and the

commitment to this policy has been a feature of Indian State ever since. The policy has

been strengthened and revised and its ambit made wider from t ime to t ime.

As regards the protect ive arrangements, to begin with, the Constitut ion itself has

provided an elabora te fra mework for eliminat ing those customs, practices, or inst itut iona l

a rra ngements, including provisions in law s, i f an y, w hich tended to san ct ify a nd reinforce

untouchability practices and other discriminatory and degrading conditions imposed on

these communities. Laws were made to operationalise these provisions. For example,

The Untouchability Practices Act, 1955 was enacted in pursuance of Article 17 of

the Constitut ion. This was subsequently strengthened and amended in 1976 andrechristened as Protection of Civil Rights Act to make it more effective. Later, as

a result of implementation of State policies, when there was spurt in physical violence

a ga inst members of Scheduled Ca stes a nd Scheduled Tribes, leadin g to brut a lities such

as mass murder, rape, arson, grievous injuries, etc. enactment of a special law for their

protect ion was resorted to known as Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 to provide for strong punitive measures which

could serve as a deterrence.

5


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Addit ional laws were enacted from t ime to t ime to protect Scheduled Castes and

Scheduled Tribes from sa nctions of an y customar y law s an d enforcement of degra ding

a nd h umilia t ing pra ct ices imposed on t hem. The Employment of Manual scavengers

and Construction of Dry Latrines (Prohibition) Act, 1993, which eliminates the

most degra ding pra ctice of ma nua l sca venging of huma n excreta by members of Scheduled

Castes, is the most important among them. The other practice sought to be stopped

related to sexual exploitat ion of SC girls. Andhra P ra desh and Ka rna ta ka ena cted laws

to eliminate practice of Devdasi system which sanct if ied a customary pract ice of

dedicat ing a young girl from t he SC community to the loca l deity wh ich virtua lly resulted

in her sexual enslavement . Maharashtra a lready had a law enacted in 1934 on the

subject.

Laws were also enacted to prevent employers from appropriating fruits of labour,

denying freedom of choice a nd resorting to other forms of exploita tion of persons employed

by them, though their focus was not confined to members of these communities but

extended to all those who came within their ambit irrespective of their caste or socialbackground. These labour la ws, in an y case, ha ve impa ct on S cheduled Ca stes more tha n

any other group in society by virtue of their poor economic conditions and low social

s ta tus . Prominent among them were the Bonded Labour System (Abolition) Act,

1976, Minimum Wages Act, 1948, Equal Remuneration Act, 1976, Child Labour

(Prohibition and Regulation) Act, 1986, Inter-State Migrant Workmen

(Regulation of Employment and Conditions of Services) Act, 1979.

Laws were also enacted and arrangements made to strike at concentrat ion of

productive as sets a nd economic resources in cast e Hindus. In th is ca tegory w ere included

Land Reforms laws a imed a t redist ribution of land t o SCs/STs a nd oth er rura l poor

and debt relief legislations for regulat ing credit t ra nsa ct ions a nd checking usuriousmoney lending.

The second part of th is stra tegy rela ting t o compensa tory discrimina tion is reflected

in ma king provisions for reserva tion of posts in public services th rough recruitment a nd

promotion, reservat ion of seats in Legislat ive bodies at the Centr al , St at e and P an chaya t

Ra j inst itut ions a nd Municipa l bodies, reserva t ion of seats in a dmission t o Educat ional

a nd P rofessional I nst itut ions, including relaxat ion of eligibility qua lificat ions. This w as

done with a view to ensuring that members of these communit ies have their share in

positions of power and decision making as also access to opportunities for higher

educat ion. I t was felt that in open competit ion they may not be able to obtain their

legitimat e sha re beca use of their a ccumula ted disa bilities over centu ries. These provisions

had the intended object ive of bridging the vast gap that existed between these groups

and the rest of the society in these areas.

The third part of the strategy related to focused and comprehensive development

of Scheduled Ca stes/Scheduled Tribes w hich w a s opera tiona lised thr ough a llocat ion of

funds a nd ea rma rking of benefits under va rious development progra mmes for members

1Na tiona l Comm ission for Scheduled C as tes a nd S cheduled Tribes. Sixth Report 1999-2000 and 2000-2001,

p. 30


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Commitment to Equality: Strategy and Approach 7

of these communities in order that they improve their economic conditions as a route

to upward mobility . This was sought to be achieved by creat ing a mechanism within

th e plan ning process th rough w hich a specified percenta ge of budgeta ry resources could

be earmarked for the benefit of these communities. In respect of Scheduled Castes, this

is know n a s the Special Component Plan,wh ich la id down tha t t he concerned a gencies

should prepare a separate plan for development of Scheduled Castes by allocating a

percenta ge of resources, which is at least eq uiva lent to the percent a ge of their populat ion

in the State and the Centre, as the case may be. These resources would be exclusively

devoted to taking up programmes and activities which directly improved their economic

conditions. This provision was further strengthened by allocation of certain resources

direct ly by the Central Government known as Special Central Assistance to be used

for t his purpose in addit ion to the ea rma rked funds under the S pecial C omponent P lan 1.

As a corollary to this arrangement, the State policy also mandated that in various

development programmes w hich ha ve a beneficiary orienta t ion, i t should be ensured th at

th e number of beneficiar ies belonging to Scheduled Ca stes (as a lso Scheduled Tribes)

should a t lea st be equivalent to the percenta ge of th eir populat ion so tha t implementing

a gencies do not produce a ny a libis or resort t o man ipulat ion t o deprive these communit ies

of their share of benefit . In certain programmes where the gaps between Scheduled

Ca stes (the sa me a pplied to Scheduled Tribes) a nd t he rest of the commun ity is excessively

large, special a rra ngements a re made to bridge this ga p by wa y of addit iona l resources

a llocat ion and t hrough specia l inst itut ional ar ra ngements. Some of the a reas qua lifying

for this dispensation are extension of literacy, poverty alleviation, land allotment for

housing and cult ivat ion, etc.

With the elaborate arrangements to protect SCs, i t was necessary to monitor

whether benefits were reaching the targeted communit ies and safeguards were get t ing

enforced. Therefore, laws were made to set up watchdog institutions to look after this

ta sk. Four such inst itut ions ha ve been set up. While the Na tional C ommission for S Cs

a nd S Ts ha s been set up under th e Constitution itself, Nat iona l Huma n Right s Commission,

Na tional Commission for Women a nd Na tional Commission for Safa i Ka ra mcharis w ere

creat ion of separa te Acts, i.e. P rotection of Hum a n Righ ts Act, 1993, Nat iona l Commission

for Women Act , 1990 and National Commission for Safai Karamcharis Act , 1993

respectively. National Human Rights Commission and National Commission for Women

cater to complaints of all sections of society irrespective of caste within their specified

manda te .

It is evident from the foregoing tha t St a te clear ly recognized th a t th e violence, overtand covert , inflicted on the Scheduled Castes was rooted in the social structure and

rela t ions, which condemned them permanent ly to a l i fe of indigni ty and socia l

subordination. The three-pronged strategy referred to above would gradually help to

eliminate condit ions which lead to this

violence and over a period of time promote

equality in society. Thus, the elaborate constitutional framework and the meticulously

crafted state policy flowing from it , refined over a period of time as experience was

gat hered, wa s a conscious at t empt at social engineering. I t a lso emerges unequivocally

tha t in this process of a lt ering social r elat ions, St at e ha d a very crucial , ra ther decisive,


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role to pla y. This r ole, wit hout doubt, h a d t o be exercised th rough a conscious a nd positive

t il t in favour of these marginalized and disadvantaged communit ies whenever pit ted

against formidable high caste groups, since the former would be too powerless to take

on the fight on their own for a long period of time. It was, therefore, hoped that

inst itut ions of the St at e-the E xecutive, the Legislat ure an d th e J udiciary would posit ively

respond to the letter and spirit of the constitutional scheme as well as the State policy.

Lest the G overnment a ppa ra tus a cts in an indifferent or biased ma nner, specia l wa tch-

dog bodies w ere also creat ed to ensure tha t commitment t o this policy a nd inst itut ional

a rra ngements created for th is purpose are not deviated from. Embedded in th is stra tegy

was also the cherished hope and idealist ic vision that the larger Hindu society would

a lso get tra nsformed under the thrust of a l ibera l and h uma nist ic polity an d democrat ic

process w hich w ould chara cterise its opera t ions. In this m an ner, support ba se for t his

effort a t social engineering would get widened leading to a posit ive change in the

at t i tudinal and behavioural response of other communit ies towards these oppressed

groups and their consequent mainstreaming of the la t ter as equal members of society.

In t he sections of th is paper wh ich follow, it sha ll be examin ed whet her th e int ended

objectives of th is th ree-pronged stra tegy w ere realized an d w heth er th e violence inflicted

on Scheduled C ast es, silently t hrough disabili t ies, discriminat ions, biases a nd continuing

untouchabili ty pract ices, and overt ly through physical assault in the form of heinous

crimes like murder, rape, arson, etc., to enforce the caste based social order has been

reduced and, i f this has not happened, what went wrong with State policies and their

implementat ion. We sha ll a lso examine in brief wh ether th e inherent hope tha t t he

larger Hindu society would support these measures to rid of its obnoxious traditions

and usher in a l iberal , humanist ic, and democrat ic society eager to catch up with the

developed world was sustained and whether State-Civil society interface on this issue

displayed the required harmony.


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SECTION – III

SSSSSOCIALOCIALOCIALOCIALOCIAL JJJJJUSTICEUSTICEUSTICEUSTICEUSTICE::::: TTTTTHEHEHEHEHE LLLLLEGALEGALEGALEGALEGAL IIIIINSTRUMENTSNSTRUMENTSNSTRUMENTSNSTRUMENTSNSTRUMENTS1

FOUNDATION: THE CONSTITUTIONAL SCHEME

The Const ituent Assembly debat es recognized th a t a section of people in India n S ociety

had been denied certain basic rights since ancient t imes and had therefore remained

economica lly, socially a nd educationally ba ckw ar d. As a result, this ha d created w idespread

dispa rit ies betw een th em and the rest of the society a nd a situat ion ha d emerged w hich

underlined the need for special measures to uplift their status. This understanding is

clearly reflected in the Constitution itself where a chapter under the title “Special

provisions rela ting t o cert a in cla sses” in P a rt -XVI ha s been incorpora ted. Special provisions

ha ve also been ma de for th e Scheduled Ca stes a nd S cheduled Tribes in P a rt -X of the

Constitution. The Constitution provides for protection and promotion of their social,

economic, educational, cultural and political interests to remove the disparities and to

bring them on par wit h other sect ions of the society. In addit ion, man y a rt icles in P a rts

II I, IV, IX, IX- A, Fifth a nd S ixth S chedule of the Constit ution reinforce these ar ra ngement s.

Article 14 provide that States shall not deny any person equality before law orthe equa l protect ion of law s w ithin the t erritory of India . Article 15 operationalises the

concept of equality in a manner which specifically touches upon the conditions of the

Scheduled Ca stes a nd Scheduled Tribes. It sa ys:

1. The S ta te shall not discriminate ag a inst a ny citizen on grounds only of religion,

race, caste, sex, place of birth or any of them.

2. No cit izen sha ll , on grounds only of religion, ra ce, ca ste, sex, place of birth or any

of them, be subjected to any disability, liability, restriction or condition with regard to -

(a) a ccess to shops, public resta ura nts, hotels and places of public

entertainment; or

(b) the use of wells, tan ks, bat hing ghat s, roads a nd places of public resort

ma inta ined wholly or part ly out of Sta te funds or dedicat ed to the use of the

general public.

3. Nothing in th is ar t icle sha l l prevent t he Sta te f rom ma king any specia l provision

for women and children.

1Sixt h Report of th e Nat ional C ommission for SC s/STs, op. cit . , Cha pter II , pp 8-17 may be seen for

more

details on the Const itut ional provis ions

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10 Report on P revention of Atrocities Aga inst SC s & STs

4. Nothing in this a rt icle or in clause (2) of a rt icle 29 shall prevent t he Sta te from

ma king an y special provision for th e adva ncement of any socia lly an d educa tionally

backw a rd classes of citizens or for the Scheduled Ca stes a nd t he Scheduled Tribes.

The Constitution also contains provisions which guarantee certain minimum

rights for all its citizens and also specifies duties which the State should discharge forsocial and economic development of backward classes, specially Scheduled Castes and

Scheduled Tribes. The right s of the citizens a re gua ra nteed under t he Cha pter on

Fundamental Rights contained in Part-III of the Constitut ion. The duties of the State

are included in the Chapter on Directive Principles of the State Policy.

Article 46

under the Directive Principles of State Policy provides that “The State

shall promote with special care, the educational and economic interest of weaker

sections of the people and in pa rt icula r of Scheduled Ca stes a nd S cheduled Tribes an d

shall protect them from social injustice and all forms of exploitation”.

Article 366 (24) defines S cheduled Ca stes a nd Article 341 identifies the process

through which such groups will be identified. Similar provisions have been made for

S cheduled Tribes in Article 366(25) and Article 342 respectively.

The C onstitut ion provides various safeguards t o implement objectives enshrined

in th e preamble to th e Constit ution. These safegua rds include social, economic, educa tiona l,

cultural, political and service.

Social safeguards are contained in Article 17, 23, 24 a n d 25(2)(b) of the

const itut ion. As per Article 17, untouchability is abolished and its pract ice in any

form is forbidden. The enforcement of any disability arising out of “untouchability has

been mad e an offence punishable in a ccordan ce w ith t he law.” Tw o importa nt legisla tions

have been enacted to give effect to contents of this article. The Protection of CivilRights Act, 1955 has been enacted with the objective of providing punishment for

preaching and practice of untouchability, in the enforcement of any disability arising

therefrom and for matters connected therewith. Article 25(2)(b) provides that Hindu

religious Institutions of a public character shall be open to all classes and sections

of Hind us. The term “H indu” includes persons professing Sikh, J a in, an d B uddhist

religions. This provision strikes against the opinion held by some sects of Hindus that

members belonging t o Scheduled Ca stes / Scheduled Tribes ha ve no right to enter th e

temples. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act

1989 seeks to prevent the commission of offences against the members of Scheduled

Ca stes a nd S cheduled Tribes.

Article 23 prohibits traffic in human beings and ‘begar’ and forced labour in

any form and contravention of this provision has been made an offence punishable in

a ccordan ce w ith la w. In pursua nce of this Art icle, Bonded Labour System (Abolition)

Act, 1976 has been enacted and a special programme for identification of bonded

labourers, their liberation and rehabilitation has been in existence to operationalise its

provisions. While this Act does not specifica lly ment ion Scheduled Ca stes a nd S cheduled

Tribes, it is of special significa nce for th em because m a jority of the bonded la bour belongs

to Scheduled Ca stes a nd S cheduled Tribes.


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Socia l J ust ice: The Legal Inst ruments 11

Article 24 provides tha t no child below the age of 14 years shall be employed

to work in any factory or mine or engaged in any hazardous employment. There are

Central and State Laws to prevent child labour pract ices and providing relief to those

engaged as child labour. The Central law is The Child Labour (Prohibition and

Regulation) Act, 1986. A large number of child labourers engaged in hazardous

employment belong t o Scheduled C a stes a nd S cheduled Tribes.

ECONOMIC SAFEGUARDS

The provisions of Articles 23, 24 [referred to above] and 46 form part of economic

sa feguar ds for Scheduled Ca stes a nd th e Scheduled Tribes. Article 46 provides that

State shall promote with special care the educational and economic interests of

weaker sections of the people an d, in pa rt icular, S cheduled Ca st es/Schedu led Tribes

and shall protect them from social injustice and all forms of exploitation. It is in

pursua nce of th is Article tha t special progra mmes for extending educat iona l opport unities

to Scheduled Ca stes a nd Scheduled Tribes have been ta ken up. Instit utional a rra ngements

for their development, including earmarking of specific percentage of funds from the

budget for various development activities in the form of a Special Component Plan for

Scheduled Ca stes a nd Triba l Su b-plan for Scheduled Tribes ha ve also been in operat ion

for a long time.

EDUCATIONAL AND CULTURAL SAFEGUARDS

Article 15(4) empowers the State to make special provisions for advancement of

any socially and economically backward classes or citizens and for Scheduled Castes/

Scheduled Tribes. This provision ha s ena bled the S ta te t o reserve sea ts for Scheduled

Ca stes/Scheduled Tribes in educat iona l inst itut ions including t echnical, engineering a ndmedical colleges.

Article 29(1) provides that “Any section of the citizens residing in the territory of

India or any part thereof, having a dist inct la ngua ge, script or culture of i ts own sha ll

have the right to conserve the same”.

Article 350(a) provides for a dequa te fa cilities for inst ructions in the mother t ongue

at the primary stage of education for children belonging to linguistic minority groups.

The a bove Art icles ha ve releva nce for S cheduled Tribes a s some of th em ha ve a

distinct lan gua ge/dialect.

POLITICAL SAFEGUARDS

Article 164(1) provides tha t in t he specific Sta tes there sha ll be a Minister in charge

of tribal welfare who may, in addition be in charge of welfare of Scheduled Castes,

Backward Classes or any other work.

Article 330 provides for reservation of seats for Scheduled C a st es/Schedu led

Tribes in Lok Sabha.


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Article 332 provides for reservation of seats for Scheduled C a st es/Schedu led

Tribes in St a te Vidhan Sabhas.

Under Article 243(D), reservation of seats in Village Panchayats, Zila P arisha ds

ha s been ma de for Scheduled Ca stes /Scheduled Tribes in proport ion to their populat ion

at respective level in direct election. It has also been provided that the reserved seatsfor Scheduled Ca stes/Scheduled Tribes sha ll be a llot t ed by r ota t ion t o different

constituencies in Panchayat at each level.

Under Article 243-T, reservation of seat s for S cheduled C a stes /Scheduled Tribes

in proportion to their population has been made in municipal bodies at each level.

Out of these reser ved sea ts for S cheduled Ca st es/Schedu led Tribes, a t lea st l/3rd ha s been

reser ved for S C/S T w omen.

Articles 371, 37l(b), 371(c), 371(f),371(g) and 371(h) deal w ith s pecial provisions

in respect of North Eastern States.

SERVICE SAFEGUARDS

Article 16, w hich provides equality of opportunity for a ll cit izens in ma tt ers rela t ing

to employment or appointment to any of f ice under the Sta te and prohibi ts any

discrimina tion on grounds of religion, ra ce, cast e, sex, descent, pla ce of birth , residence

or any or all of them, has made a very special provision which permits Parliament to

make any provision for reservation of appointments or posts in favour of any

ba ckw a rd class of citizens w hich, in the opinion of the S ta te, is not a dequa tely represented

in the services under the State. I t is through this provision that reservat ions in

a ppointm ents a nd promotions for Scheduled Ca stes a nd Scheduled Tribe and for OBC s

in the matter of recruitment have been made.Under Article 16(4)(a), th is benefit of reservation in the matter of promotion

ha s been extended to Scheduled Ca stes a nd S cheduled Tribes to overrule t he judgment

of the Supreme Court.

Article 16(4)(b) ha s further ma de provisions to permit backlog vacancies a s a

separ at e cat egory in a ny yea r for determining the ceiling of 50% reservat ion on tota l

number of vacancies that year.

Article 335 provides that the reservat ion provisions shall be made taking into

considerat ion efficiency of administrat ion. Through a specific amendment to the

Constitut ion, the Sta te has been empowered to make any relaxation for qualifyingmark in an y examina tion or lowering the sta nda rds of evalua tion for enforcing reservat ion

in matters of promotion to any class or classes of service or posts in connection with

the affairs of the Union or of the State.

In addition to the protections referred to above, which deal with both Scheduled

Ca stes a nd Scheduled Tribes, specia l safegua rds ha ve also been ma de for S cheduled

Tribes.

Article 244 provides for legislation for special problems for Scheduled areas and

lay s down provisions of the 5t h Schedule in respect of a dminist ra tion a nd contr ol of such


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areas. Provisions have also been made for administrat ion of tribal areas in the 6 t h

Schedule.

5th Schedule to the Constitution, under Article 244(1) authorizes the Governor

to direct that a part icular law or notif icat ion passed by Parliament or Legislat ive

Assembly shall not apply to the scheduled area or any part thereof or shall applysubject to certain exceptions and modifications. Governor is also authorized to make

regulation for peace and good government in the scheduled areas of the State.

Article 275(1) provides that specific allocat ions may be made from the

Consolidated Funds of India to give as grant-in aid for each such area for meeting

th e cost of schemes of development a nd for promoting th e w elfare of S cheduled Tribes

in the State. Similar provision exists for such special grants for the 6t h scheduled area.

Article 338 of the Constitution provides for a National Commission for Scheduled

Ca stes a nd S cheduled Tribes an d specifies the functions it w ould discha rge a nd th e

report i t is required to present to the President .

A. FOR ENFORCING EQUALITY AND REMOVING DISABILITY

1. Untouchability Offences Act, 1955

Through Article 17 of the Constitut ion, untoucha bility w as abolished an d its pract ice

in any form had been abolished. Untouchability means the practices evolved as social

restrictions in sharing food, access to public places, offering prayers and performing

religious services, entr y in t emple and oth er public places and denial of a ccess to drinking

w a ter sources, etc. Within 5 year s of a doption of Const itut ion of India , the U nt oucha bility

(Offences) Act, 1955 was enacted by the Parliament. The Act contained a significant

provision tha t w here an y of the forbidden pra ctices “is committ ed in relation to a m ember

of a S cheduled Ca ste” the C ourt sha ll presume, unless the contra ry is proved, tha t such

act was committed on the ground of “Untouchability”. This implied that the burden of

the proof lies on the accused and not on the prosecution.

Soon after that Act came into force there was a general feeling of dissatisfaction

w ith its impact a s th e legislat ion failed to serve the purpose for w hich it wa s enacted.

The punishments a wa rded under the Act were a lso not adequa te. G overnment of India ,

therefore, appointed a Committee in April 1965 under the Chairmanship of Shri Ilaya

Perumal to study, inter-alia, problems of Untouchability vis-a-vis the working of the

Untouchability (Offences) Act 1955 and to suggest changes therein. The Committee’s

report was submitted in 19692.

2. Protection of Civil Rights Act, 1955

B a sed on th e recommenda tions of the Comm itt ee, this Act wa s comprehensively a mended

in 1976 and its name was changed to “The Protection of Civil Rights Act, 1955”. The

amended Act came into force from 19 th November 1976. Under this Act, the preaching

and practice of ‘Untouchability’ or the enforcement of any disability arising therefrom

2Naval, op. cit . , p. 22 also Sixth Report, op. cit . , p. 206


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and for matters connected therewith, was made cognizable and non-compoundable

offence and the terms of imprisonment were enhanced. The State Governments have

been empowered to impose collective fines on t he inha bita nts of any ar ea found committing

and abetting the commission of untouchability offences. This Act, along with the Rules

fra med th ereunder, lays down ela borat e procedure for ensuring protection of th e victims

of such practices by providing for special courts, special prosecution, fixing period for

investigation, etc.

B. FOR CREATING DETERRENCE AGAINST PHYSICAL VIOLENCE

Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989

The enforcement of P rotection of Civil Right s Act, 1955 also brought to t he fore limita tions

both of the law as well as i ts implementa t ion in eliminat ing the pra ct ice of untoucha bility

in view of its entrenched position in the psyche and behaviour of the caste Hindus and

their resistance to change. Society as a whole never accepted the Protection of Civil

Right s Act3

. Meanw hile various at rocit ies aga inst scheduled castes a nd scheduled tribescontinued to be committed in different parts of the country. It was realized that even

the amended Protection of Civil Rights Act, 1955 and normal provisions of IPC did not

provide deterrence in preventing violence on scheduled castes and scheduled tribes

especia lly offences committ ed on cast e grounds 4. Accordingly, P a rliam ent pa ssed a nother

law called “Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989”. The Rules under the Act were framed in 1995 to prevent commission of

a tr ocities ag a inst m embers of th e Schedules Ca stes a nd Tribes, to provide for specia l

courts for the trial of such offences and for the relief and rehabilitation of the victims

of such offences and for matters connected there with or incidental thereto.

In the ‘St at ement of Objects a nd Rea sons’ appended to th e B ill when it w a s moved

in the P ar liament, i t w as observed th at despite various measures to improve the socio-

economic conditions of Scheduled Ca stes a nd S cheduled Tribes, they still rem a ined

vulnerable. They are denied a number of civil rights and are subjected to various

offences, indignities, humiliation and harassment. They have been, in several brutal

instances, deprived of their life and property. Serious atrocities are committed against

them for various historical, social and economic reasons 5. The Act, for the first time,

lays down the contours of ‘atrocity’ so as to cover all multiple ways through which

members of scheduled castes and scheduled tribes have been for centuries humiliated,

brutally oppressed, degraded, denied their economic and social rights and relegated to

perform the most menial jobs.

The objectives of the Act very clearly emphasise the intention of the Government

to deliver justice to these commu nities th rough a ffirma tive a ction to ena ble them to live

3Cha udha ry, TK, the then IG P for PCR C ell, Maha rash tra quoted in Huma n Rights Wat ch, Br oken P eople,

p. 1834St at ement of Objects and R easons for Scheduled Ca stes a nd th e Scheduled Tribes (P revention of Atr ocities)

Act, 1989; Also see Naval, op. cit., p. 245Naval, op. cit . , p. 24


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in society with dignity and self-esteem and without fear or violence or suppression

from the dominant castes. The Act provides for strong punishment and compensation

to vict ims and also lays down preventive measures.

C. FOR ELIMINATION OF DEGRADING & HUMILIATING CUSTOMARY

PRACTICES

1. Employment of Manual Scavengers and Construction of DryLatrines (Prohibition) Act, 1993

The most degrading of all occupations and forms of labour thrust upon untouchables

by the caste based social order is that of manual scavenging. Members of communities

who are engaged in manual scavenging are made to clear faeces from public and

private latrines, using broom, t in plate and a basket and carry them to dumping

grounds or disposal sites. Those working in private establishments and households

are paid very low wages 6. In cities, scavengers are lowered into filthy gutters in order

to unclog them and are fully immersed in human waste without any protect ive gear.

A number of them die as a result of carbon monoxide poisoning7.

The prac t ice of manual scavenging has been prohibi ted by law under the

Employment of Manual Scavengers and Construction of Dry Latrines

(Prohibition) Act, 1993. The Act bars any person to engage in or employ or promote

to be engaged in or employed any other person for manually carrying human excreta

or construction of a dry latrine. The Act also empowers the State Governments to

make one or more schemes for regulating conversion of dry latrines into water sealed

latrines and rehabilita t ion of persons who were engaged in or employed for manual

scavenging. The Act mandates a time bound phased programme for conversion of dry

latrines into water sealed latrines, provision of technical or financial assistance for

alternate low cost sanitat ion, construction and maintenance of community latrines,

registrat ion of manual scavengers and their rehabilita t ion. The Act makes violat ion

of the law an offence punishable with imprisonment for a term which may extend to

one year or with f ine or with both 8.

In pursuance of the Act, Ministry of Urban Development operates a scheme for

conversion of dry latrines into water sealed latrines, in which some element of subsidy

is provided by the Central Government. Ministry of Rural Development administers

Rural Sanitat ion Programme for construction of sanitary latrines in rural areas for

conversion of dry latrines into wet latrines and construction of village complex for

w omen. Ministr y of Social J ustice & Em pow erment h a s a centra lly sponsored scheme,

called the National Scheme for l iberat ion and rehabilita t ion of scavengers. This

Ministry, through another scheme, provides pre-matric scholarship to children of

those engaged in unclean occupations 9, which is intended to benefit children of

scavengers primarily. Government of India has also set up a National Commission for

6Hu ma n Right s Wa tch, B roken P eople, op. cit . , p. 141

7Human Rights Watch, op. cit . , p. 141

8Section 14 of the Act - See National Commission for Safai Karamcharis - A Hand Book - 2000, p. 2

9National Commission for Safai Karamcharis - A Hand Book, op. cit . , pp 6-8


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Safai Karamcharis under an Act of Parliament to monitor progress of the programme

on elimination of manual scavenging and the rehabilita t ion of l iberated scavengers.

2. Devdasi System Abolition Acts

Devdasi means a female servant of God. This ancient system entails the ceremonial

or ritua l dedicat ion or ma rriage of a girl , t ra dit iona lly from S cheduled C ast e community,who is yet to at ta in the age of puberty, to a deity or to a temple. Devdasis originally

had only religious functions, but the practice subsequently degenerated into sexual

abuse of these women by high priests and royal patrons and, la ter, by landed gentry

and other powerful persons. Once dedicated, the Devdasi girl cannot marry and is

forced to become a prostitute for caste Hindus and eventually auctioned to a brothel 10.

The pract ice is prevalent largely in Karnataka, Andhra Pradesh, Maharashtra and

Orissa. There is no nat ional legislat ion outlawing the pract ice of Devdasi system.

However , Andhra Pradesh has enac ted a law ca l led “Andhra Pradesh Devdasi

(Prohibition of Dedication) Act, 1988 which provides for rehabilitation of such women,

Karna t aka Government has a l so enac ted the Karna t aka Devdas i (Proh ib i t ion o f

Dedication) Act, 1992.

D. FOR PREVENTING CONTROL OVER FRUITS OF LABOUR

Bonded Labour System (Abolition) Act, 1976

Bonded Labour system refers to work in slave like conditions in order to repay a debt.

The poor people lar gely belonging t o Scheduled Ca st es a nd S cheduled Tribes incur

debt for survival and meeting certain urgent and basic necessities of life for which

they are charged exorbitant interest. Due to their illiteracy, lack of bargaining power

and extremely low wages, creditors manage to create a situat ion where the debt is

never liquidated and consequently the debtor has to render labour in lieu thereof.

The Bonded Labour System (Abolit ion) Act , 1976 abolished all agreements and

obligat ions, including customary sanctions which permit bonded labour system in

va rious forms. The Act a lso released a ll such la bourers from t hese obliga tions, cancelled

their outstanding debts and prohibited creat ion of any new bondage agreement. The

Act also mandatorily provided for economic rehabilitation of freed bonded labour by

th e St a te. K eeping a bonded labour is a violat ion of law and is punishable with sentence

of 3 year s imprisonment a nd a fine of Rs. 2,000/-. Mini st ry of La bour opera tes a cent ra lly

sponsored scheme for rehabilitation of released bonded labourers.

The Minimum Wages Act, 1948

This Act provides for fixing of minimum rates of wages in different employments and

appointment of Committees or Subcommittees for this purpose. The act also fixes the

norms of hours of work, rest and overtime rates. The machinery for enforcement of

the Act has also been provided for.

Equal Remuneration Act, 1976

The Act mandates that there shall be no discrimination in the payment of wages to

women workers performing same or similar nature of work as men.

10Quoted in H uma n Right s Wa tch, B roken People, op. cit . , 151


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Child Labour (Prohibition and Regulation) Act, 1986

The Act prohibits the engagement of children in certain employments and regulates

the conditions of work of children in certain others. It outlines severe penalties for

th ose violat ing it s provisions. The Act a lso provides for a Ch ild La bour Technical

Advisory Committee to advise the Central Government on which occupations and

industrial processes the employment of child labour should be prohibited.

Various other laws which prohibit the employment of child labour on grounds of

safety, etc. include The Children (Pledging of Labour) Act, 1933, The Employment of

Children Act, 1938, Factories Act, 1948, Plantation Labour Act, 1951, The Mines Act,

1952, The Mer cha nt S hippin g Act, 1958, The M otor Tra ns port Worker s Act, 1961, The

Bidi Cigar Workers (Conditions of Employment) Act, 1966, The Shops and Commercial

Establishment Acts, etc.

Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979

The Act, as t he tit le suggests, la ys dow n th e conditions of employment of migran t la bour

to protect them from exploitation by contractors, middlemen and employers. It applies

to establishments employing five or more than five migrant workmen and provides for

issuan ce of license to contr a ctors w ho supply migra nt labour. It a lso fixes the responsibility

of Principal Employer with regard to fulfillment of conditions pertaining to payment of

w a ges an d w elfare mea sures by t he contra ctor. Violat ion of the provisions of the Act ha s

been made punishable.

E. FOR CURBING UNEQUAL DISTRIBUTION OF ECONOMIC ASSETS

1. Land Reform Laws

The Agrarian structure in the country prior to independence was characterised by high

degree of concentration of land by a small section of society and the actual cultivators

of land were acutely exploited by them. Land Reforms Policy, introduced in the country

after independence, introduced a five fold programme to check this concentration of

economic power. The policy abolished int ermedia ries from ow nersh ip of la nd a nd conferred

this right on the tillers of the soil. It also abolished tenancy as a form of cultivation

a nd ma nda ted th at the a ctua l t i l ler of the soil should be its owner. A ra dical redistribution

program me of lan d a mong the landless agricultura l labour wa s underta ken by introducing

ceiling on land holding and acquisition of surplus land for this purpose. Through the

programme of consolidat ion of land holdings, arrangements were made under which

small parcels of land could be exchanged for a compact contiguous plot through mutualadjustment in the village. Land records were also sought to be updated so that rights

and interests of cult ivators were safeguarded against manipulat ion. Land reforms laws

w ere ena cted a nd other regulat ory a rra ngements w ere made giving effect t o this policy

by a l l S ta tes .

2. Debt Relief Legislations

In debt edness is a chronic problem of a ll poor persons but it a ffects S Cs /S Ts more severely.

Indebtedness arises because of their poverty and therefore need to borrow for

subsistence and to meet other emergent social expenditure like illness, marriage, etc.


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Since no such credit is available from institutional sources, money is borrowed from

private money lenders who charge exorbitant rates of interest . Due to their inability

to pay back, the borrowers are enmeshed in a vicious cycle of debt-bondage.

Several States have enacted legislation to regulate money lending activity, impose

limit on gross rate of interest and nullifying loans given by unlicensed money lenders,dischar ging debt incurred before a s pecified dat e, etc. Special fea tur es ha ve been inserted

in these legislations for the benefit of SCs a nd STs. These law s w ere ena cted in the lat e

70’s and early 80’s. The provisions of these legislations have considerable relevance for

SC s (also STs) as t heir enforcement ca n help th em disenga ge from exploita tive money

transaction on this account relationship and use their meager income for their benefit .

F. FOR POSITIONING WATCHDOG ARRANGEMENTS

1. National Commission for SCs and STs

In view of their weak social posit ion, i t had been realized at the t ime of framing the

Const itut ion itself, tha t sa feguar ds provided for SCs /STs in its provisions a nd a lso oth erlaws, regulatory arrangements and policy measures, may not get implemented due to

apathy or bias of the implementing agencies or pressures mounted by vested interests

in the civil society who stood to lose from them. Accordingly, the need was felt to have

a sta nding body a s a wa tchdog inst itut ion to continuously monitor wh ether the a ct ivit ies

of the Government are in consonance with the declared intentions, designed legal &

institut iona l a rra ngements and policy sta tements. A perma nent institut iona l a rra ngement

called the Special Officer for SCs and STs incorporated under Article 338 of the

Constitut ion served this purpose. Later, this arr an gement w as strengthened an d in 1990

the Constitution was amended providing for a multi-member National Commission for

SC s a nd S Ts w ith enha nced powers. The Commission is required to submit report

annually to the Parliament. The first Constitut ional Commission became operat ional

on 12th March 1992.

2. National Human Rights Commission

The Human Rights Act, 1993 seeks to provide regulatory framework for protection of

rights relat ed to life, liberty, equality, dignity of individuals gua ra nteed by th e Constitut ion

or embodied in the I nterna t ional Covenants an d enforceable by courts in India . Section

3 of t he Act provides for constitution of National Human Rights Commission and

Section 21 provides for const itut ion of State Human Rights Commission. In pursuan ce

of Section 3, a National Human Rights Commission is already in existence since

12t h

October, 1993. It takes up the cases regarding human rights violations addressedto it a nd thr ough its ow n init ia t ive. As a trocit ies on SC s a re violat ion of Huma n Rights,

it intervenes in complaints relating to them also. The Commission is also required to

submit a report annually which is la id on the table of both Houses of Parliament.

3. National Commission for Women

Section 3 of National Commission for Women Act, 1990 provides for the constitution of

National Commission for Women to invest igate and examine all matters relat ing to

safeguards provided for the women under the Constitut ion and various other laws.

The First National Commission was constituted on 31 st J an uar y, 1992. It ta kes up


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complaints of women referred to it for redressal irrespective of caste. Accordingly,

problems of SC women including those of physical violence against them are also dealt

with by it . As other statutory Commissions, the Commission has to submit a report

annually which is la id on the table of both the Houses of Parliament.

4. National Commission for Safai KaramcharisThis Commission was set up under the National Commission for Safai Karamcharis

Act, 1993 on 12th August, 1994 for a period of three years. But its tenure has been

extended from time to time. Unlike the other three Commissions, this Commission

does not ha ve a perma nent st at us perhaps because it w as set up to look after a specific

programme of l iberat ion and rehabilita t ion of scavengers and may be wound up after

this programme is completed. This Commission also submits a report every year

which is la id on the table of both Houses of Parliament.

International Standards Applicable to India

Various Internat ional Human Rights covenants and conventions applicable to India ,

include:

(a ) Un iversa l Decla ra t ion o f Human Righ t s 1948,

(b) Interna t iona l Covenant on Civil and P ol it ica l Rights 1966,

(c) In terna t iona l Covenant on Economic, Socia l a nd Cultura l Rights 1966,

(d) Interna t iona l C onvent ion on El iminat ion of a l l forms of Racia l Discr iminat ion

1965,

(e) Convention on E limina tion of a ll forms of Discriminat ion a gainst Women 1979,

(f) Convent ion on Rights of the Child 1989,

(g) ILO Convention No. 29 - Forced Labour Convention 1930,(h) ILO Convent ion No. 111 - Discr imina t ion (Em ployment and Occupat ion)

Convention 1958,

(i) ILO C onvention No. 107 - Indigenous P eoples Convention 1957.

All the above have been signed and rat if ied by the Government of India . In

addi t ion , the Convent ion aga inst tor ture and other cruel , inhuman or degrading

treatment or punishment (1984) has also been signed but not yet ratified. There is

pressure on Government of India to ratify it since mechanisms have been provided

against the pract ice of torture and Courts and National Human Rights Commission

ha ve also issued direct ions in this ma tt er11. These interna t ional instruments lay down

norms and standards for treatment of individuals and groups and protect ion of their

rights. As a result of these conventions, Government of India is required to submit

periodical reports to the concerned internat ional organizat ions monitoring their

enforcement. The concerned Committees of these organizations make observations

or furnish comments on the reports submitted12.

11Statement of the Chairman, NHRC recent ly while inaugurat ing a SAARC Conference on pract ice of

torture.12

Sakshi, Dalit Human Rights Monitor-2000, Andhra Pradesh, p. 152


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SECTION – IV

PPPPPROROROROROTECTIONTECTIONTECTIONTECTIONTECTION::::: TTTTTHEHEHEHEHE MMMMMISSINGISSINGISSINGISSINGISSING DDDDDETERRENCEETERRENCEETERRENCEETERRENCEETERRENCE

In the last Sec t ion, reference was made to the elabora te f ramework of laws and

regulatory arrangements which are intended to enforce the const itut ional provisions

and administer social justice to SCs. This Section will examine how far the declared

intentions and object ives in these arrangements have materialized. In the course of

this scrutiny, observat ions and comments would be offered on the status of their

implementation and the social constraints which condition this effort. The impact of

the entire strategy of protect ion in relat ion to atrocit ies against SCs would thus be

assessed . In doing so the laws which respond to d isabi l i ty and violence aga inst

Scheduled Castes would be dealt with in detail while other laws and regulat ions

would receive brief treatment .

A. FOR ENFORCING EQUALITY AND REMOVING DISABILITY PROTECTION OF CIVIL RIGHTS ACT, 1955– THE LAW1

The Act deals with enforcement of any disability arising out of untouchability practices

with the object ive of punishing persons preaching and pract ising untouchability .Section 3 of the Act prohibits religious disabilities such as preventing persons from

entering into a place of public worship, performing any religious service, bathing or

using water of any sacred water body. Section 4 prohibits social disabilities like

preventing access to shops, restaurants, hotels, public conveyance and places, use of

separ a te ut ensils, etc . Section 15-A man dates the Sta te to ensure tha t r ights accruing

from abolition of untouchability are enjoyed by those who are victims of the practice

and provides for a higher punishment if a person resorts to reprisals or revenge for

having exercised any right on account of abolition of untouchability. There is also a

provision for setting up Vigilance and Monitoring Committees-as provided for under

Section 16(8). The Protection of Civil Rights Rules were also framed and notifiedin 1977.

PROTECTION OF CIVIL RIGHTS ACT, 1955 - THE STRUCTURE

Section 15 (2) of the Act directs the state to take specified administrat ive measures

for implement a tion, such as set ting u p of Special C ourts for tria l of offences, appoint ment

1The Protection of Civil Rights Act, 1955, formerly known as Untouchability (Offences) Act, 1955 as

amended in 1976

20


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Protection: The Missing Deterrence 21

of officers for initiating or exercising supervision over prosecutions initiated under

the Act, setting up of Committees for monitoring and guidance, etc.

I t a lso makes arrangements for legal a id to the vict ims and preventive measures

such as periodic survey on the working of the Act and identification of areas where

disabilities arising out of practice of untouchability have been observed with a view to adopting suitable measures for their eliminat ion.

The Central Government has been entrusted with the task of coordinat ing with

the State Governments measures taken by them for implementat ion of the Act and

is required to place on the table of both Houses of Parliament a report every year

on the measures taken by itself and the State Governments.

ADMINISTRATIVE ARRANGEMENTS

The fol lowing s ta tement would show the administ ra t ive arrangements made and

other measures taken by various State Governments in pursuance of the Act for i tsimplementa t ion.

The S t a tement wou ld show tha t the S t a t e Governments have not t aken the

implementat ion of the Act very seriously. P unjab a nd West B engal h ave not t aken a ny

administrat ive measures for implementat ion of the Act . West Bengal Government has

claimed that untouchability is not practiced there. This itself would indicate the lack

of their seriousness with regard to the implementat ion of the Act . Several major

Sta tes , such as Assam, Bihar , Ut tar Pradesh Rajasthan, e tc . have not const i tu ted

special courts un der the Act . In forma tion about Andhra P ra desh, among ma jor Sta tes,

is not available. Madhya Pradesh has even wound up the special courts which it had

set up because of small number of ca ses. None of the Sta tes, except G ujar at , Maha ra shtr a

and Rajasthan, have identif ied untouchability prone areas. The work in relat ion to

Madhya Pradesh is in progress. Even an innocuous provision like incentives for inter-

caste ma rr ia ge has not been implemented in Rajast ha n, Ta mil Nadu, U.P . and

Uttaranchal. In respect of Assam, requisite budgetary provision has not been made

for the Scheme2 and in respect of Bihar no information has been furnished. I t will

thus be evident that States in general have shown no keenness or enthusiasm to

implement various provisions of the Act. The impression thus conveyed is that either

the problem of untouchability does not exist or its incidence is so negligible that it

is not worthy of much at tention. This clearly shows the inability or perhaps the

unwil l ingness of the Sta te Government to come to gr ips with the prac t ice ofuntouchability, particularly in its most subtle forms at various levels in society.

2Sixth Report, op. cit . , p. 60


22/309


M e a s u r e s

t a k e n

b y

S t a t e G o v e r n m e n

t s / U n

i o n

T e

r r

i t o r y

A d m

i n i s t r a

t i o n s u n

d e

r P

r o

t e c

t i o n o

f C i v i l

R i g h t s A c

t , 1

9 5 5

d

u r

i n g

t h e y e a r 2

0 0 0

S t a t e s / U T s

C o m m i t t e e s

A d m n .

S p e c i a l

L e g a

l

U n t o u c h .

I n t e r - c a s t e

P u

b l i c i t y

O t h e r

M a c h i n e r y

C o u r t s

A i d

p r o n e

m a r r i a g e

m e a s u r e s

M e a s u r e s

a r e a s

A s s a m

N o

N o

B u

d g t .

p r o v n b u t

n o

s a n c t i o n

B i h a r

N o

S p l .

P o l i c e

S t a t i o n

G o a

N o

N o

N o

G u j a r a t

2 1 d i s t s

A s s i s t a n c e

t o v i c t i m s

H a r y a n a

N o

A w a r d t o

P a n c h a y a t s

H i m a c h a l

N o

N o

P r a d e s h

J h a r k h a n d

K a r n a t a k a

K e r a l a

C o m m u n i t y

f e a s t s / s e m i n a r s

M a d h y a

S p . c o u r t s

W o r k

S p l . P o l i c e

P r a d e s h

w o u n d U p

U n d e r

S t a t i o n s

b e c a u s e o f

p r o g r e s s

l o w N o . o f

c a s e s

M a h a r a s h t r a

U n d e r

2 0

E x h i b i t i o n ,

c o n s i -

d i s t s

e t c . ,

d e r a t i o n


23/309


S t a t e s / U T s

C o m m i t t e e

s

A d m n .

S p e c i a l

L

e g a l

U n t o u c h .

I n t e r - c a s t e

P u b l i c i t y

O t h e r

M a c h i n e r y

C o u r t s

A

i d

p r o n e

m a r r i a g e

m e a s u r e s

M e a s u r e s

a r e a s

O r i s s a

N o

P u n j a b

N o

N o

N o

N o

R a j a s t h a n

T a m i l N a d u

1 9 4 V i l l .

C o m m u n i t y

f e a s t s / a w a r e n e s s

P r o g r a m m

e s

T r i p u r a

N o t r e q d .

N o

B u d g e t a r y

u n d e r P C R A

P r o v

i s i o n B u t

b u t 4 c o u r t s

n o i n

t e r c a s t e

u n d e r P O A

m a r r i a g e h e l d

U P

N o

A w a r e n e s s

P r o g r a m s

U t t a r a n c h a l

N o

A w a r e n e s s

P r o g r a m s

W e s t B e n g a l

N o

N o

N o

N o

N o

C h a n d i g a r h

N o

N o

D a d a r &

N o

N o

N a g a r H a v e l i

D a m a n &

N o

N o

N o

N o

N o

N o

N o

D i u

D e l h i

N o

N o

N o

N o

P o n d i c h e r r y

N o

N o

A w a r e n e s s

P r o g r a m s

S o u r c e : A n n u a l R e p o r t o f t h e

M i n i s t r y o f S J & E ( T w e n t i e t h R e p o r t ) o n t h e P C R A c t , 1 9 5 5 f o r t h e y e a r 2

0 0 0


24/309


VOLUME OF CASES

With regard to the enforcement of the Act, the following statement contains details

of the cases registered under the old and amended Acts from 1955 to 2000:

Year No. of cases Registered

1955 180

1956 693

1957 491

1958 559

1959 481

1960 275

1961 489

1962 389

1963 393

1964 371

1965 366

1966 488

1967 353

1968 214

1969 329

1970 364

1971 526

1972 1515

1973 2456

1974 1908

Year No. of cases Registered

1975 3528

1976 5108

1977 3425

1978 4729

1979 4911

1980 4303

1981 4085

1982 4087

1983 3949

1984 3925

1985 3332

1991 2944

1992 2900

1993 2531

1994 1731

1995 1528

1996 1417

1997 1216

1998 724

1999 678

2000 666

Sour ce: Na t ional Crimes Records Bureau, Crime in India

This statement shows that number of cases registered was very low right from

the inception of the Act, but picked up only from the year 1972. There was, however,

a substantial increase in the number of cases registered from 1976 when the old Act

was comprehensively amended. However, the number of registered cases are showing

a progressive decline over the years and their number has gone down considerably

since 1998. Ordinarily, these statistical details may lead to the conclusion that the

problem of untouchability is gradually disappearing.

But this inference is hardly tenable. The data about the status of prosecution for

the year 2000 presented in the 20 t h Report la id by t he Ministry of Social J ust ice an d

Em pow erment on 23.4.2002 indicat es tha t 62.37% of tota l number of ca ses registered

ha ve come from A.P. an d second in order is Ka rna ta ka, w hich a ccounts for 11.45%.

No cases were registered from such major States as Bihar, Gujarat , Kerala , Punjab,


25/309


U .P. , Ut t ara nchal , Assam and West B engal3. Ca n it be said th a t unt oucha bility pract ices

have ceased to exist? Obviously not. The investigation of cases dealt with by Police

sh ows hu ge penden cy. Of th e tota l nu mber of 2086 cas es, 1216 (58.29%) a re st ill

pendin g w ith police a nd only 618 ha ve been cha rge-sheet ed (29.63%). The posit ion

in respect of pendency in Courts is even worse. 7,366 cases out of 9,949 cases, were

pending w ith Court s. Only 271 (02.72%) cases h a ve ended in conviction w hile a s la rge

a s 2312 (23.24%) ha ve ended in a cquit ta l4. It is not difficult to see that people have

lost fa ith in the enforcement of law an d tha t is the reason wh y no registra t ion is ta king

place. The large number of registered cases in A.P. and, to some extent, in Karnataka

may be reflective of the level of enthusiasm in certain areas or the support extended

by some NGOs/a ctivist organ izat ions before an d aft er compla ints a re registered. Some

critics have offered another explanation for low registration of cases. Since a more

deterrent law, i.e. Scheduled Ca stes a nd S cheduled Tribes (P revention of Atr ocities)

Act, 1989 has been enacted, it is likely that the prosecution authorities may not be

registering cases under the Protection of Civil Rights Act. The vigilant complainants

or the organizations backing them may also be preferring the Prevention of Atrocities

Act, 1989 for registration. But this has to be established empirically. Prima facie, it

does not appear convincing because even in respect of heinous crimes the police

ma chinery in ma ny S ta tes ha s been deliberat ely a voiding SCs a nd S Ts (P revention

of Atrocities) Act, 1989 and registering cases under IPC. In any case, the continuing

atrocities on Scheduled Castes are sufficient indication, if one is needed, that caste

based discrimination and disabilities still operate and violence is inflicted when they

raise their voice against i t and claim their const itut ional rights to equality .

Thus, the declining number of cases under Protection of Civil Rights Act does

not represent a marked reduction in the practice of untouchability. Rather, it is a

reflection on the ineffectiveness of law - a conclusion which tallies with the view

expressed by Na tiona l Commission for S cheduled C a stes/Scheduled Tribes in it s S ixth

Report 5.

State Governments have also shown no seriousness in identifying untouchability

prone a reas a nd even wh ere this ha s been done, there is no plan of act ion to eliminat e

th is pra ctice. There is very litt le publicity of the provisions of the Act, despite th e cla im

ma de by most S ta tes tha t t his ha s been done. No periodica l surveys are carried out a s

required. The Administrat ive arrangements, most notably the set t ing up of Special

Court s a nd a ppointm ent of Specia l P ublic P rosecutor for th e operat ion of the Act do not

exist in ma ny S ta tes. Even if some Sta tes did not feel the n eed for set t ing up of specialcourts exclusively for Protection of Civil Rights Act cases, they could have allotted the

tria l of ca ses under this Act a lso to the special courts wh ich a re dealing w ith cases under

th e Scheduled C a st es a nd S cheduled Tribes (Pr event ion of Atr ocities) Act, 1989. There

is virtually no monitoring of the implementation of the Act at any level. Vigilance and

3Annua l Report on t he P rotect ion of Civil Righ ts Act , 1955 for the y ear 2000 (Twent ieth R eport)

pp 3-44Twen tieth Report on P CR Act, op. cit . , pp 6-7: Also Annexure I a nd II .

5Sixth Report, op. cit . , p. 207


26/309


Monitoring Committees, as prescribed under the Act, have not been constituted and

where such committees exist they hardly function. Meetings of these committees are

not held regularly. The quality of prosecution is poor because the functionaries

entrusted with the work lack both competence and motivat ion. Even the reports

prepar ed by th e Minist ry of Socia l J ust ice an d E mpowerment an d placed before

Parliament contain merely factual information received from States about registrat ion

and disposal of cases; various administrat ive arrangements made for the function of

the Act and funds spent , without any meaningful analysis of the performance of the

States which could form the basis for making corrective interventions.

A number of studies have been carried out on the practice of untouchability and

atr

nhrc report on caste violence

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