Law and Dalits’ Social Inclusion in India
By Dr. Arvind Kumar
President, India Water Foundation, New Delhi.
This article examines the issue of plight of the Dalits, their social exclusion in different sectors in India in the background of brief appraisal of the notion of social exclusion and its prevalence in India. It also takes into account various legal measures prevalent in the country and their implementation which is designed to bring the Dalits from social exclusion to social inclusion.
Viewed in a broad spectrum, the notion of ‘social exclusion’ denotes the systematic exclusion of individuals and groups from one or more dimensions of society, such as structures of power and privilege, opportunities and resources. Social exclusion also describes as to what happens when people or areas are excluded from essential services or every day aspects of life that most of us take for granted. Socially excluded people or places can become trapped in a cycle of related problems such as unemployment, poor skills, low incomes, poverty, poor housing, high crime, bad health and family breakdown.
The characteristics of the current widespread phenomenon of exclusion entail, what Goffman (1963) calls both the paths of stigmatization and isolation. The debates in Europe on new forms of poverty as a sequel to the crisis of the welfare state have spurred development studies to focus on the notion of social exclusion. According to Figueiredo and de Haan (1998), a research project at the International Institute in the mid-1990s, originally as contribution to the World Summit for Social Development, produced a range of country studies. An IDS Bulletin in 1998 focused on the subject, with an emphasis on bringing together northern and southern debates on poverty (de Haan 1998). The writings of Amartya Sen (1998) and the conference on chronic poverty at the University of Manchester in 2003 have also dealt with this issue. Common to most of these writing is a definition that emphasizes that: a) poverty is a multi-dimensional phenomenon, and b) on the institutions and processes that are responsible for causing and reproducing deprivation.
According to Hilary Silver (1994), interpretations of the concept of social exclusion have differed greatly, and there may have been more conceptual critique than empirical applications of the concept. Silver distinguished three paradigms of social exclusion, depending in particular on the ways social integration has been conceptualized, and associated with ‘theoretical and ideological baggage’. In the ‘solidarity paradigm’, dominant in France, exclusion is the rupture of a social bond between the individual and society that is cultural and moral. The poor, unemployed and ethnic minorities are defined as outsiders. National solidarity implies political right and duties.
A ‘specialization paradigm’, dominant in the US, and contested in the UK, is determined by individual liberalism. According to liberal-individualistic theories, individuals are able to move across boundaries of social differentiation and economic divisions of labour, and emphasize the contractual exchange of rights and obligations. In this paradigm, exclusion reflects discrimination, the drawing of group distinctions that denies individual’s full access to or participation in exchange or interaction. A ‘monopoly paradigm’ is influential in Britain and many Northern European countries, and views the social order as coercive, imposed through hierarchical power relations. Exclusion is defined as a consequence of the formation of group monopolies, group distinctions and inequality overlap.
Social exclusion in India
In Europe, the concept of social exclusion has generally been concerned with social problems in the labor market thrown up by economic restructuring. According to Noam Chomsky, it is this economic restructuring, and the resultant social transformation, that dismantled social bonds and support systems, undermined democracy and condemned large numbers of people to life in urban slums and collapsing rural communities.
However, the Euro-centric approach and its labour market framework are not helpful in comprehending the full gamut of social exclusion in India. The exclusion discourse in Indian society has to be understood against the backdrop of the caste system.
Caste, traditional India’s system of social ordering and control, has been the most elaborate form of social stratification. It has dominated the Indian sub-continent for about three millennia, and is also the most exhaustive and obnoxious of all exclusionary systems. Caste-exclusions are explicit in traditional society. Membership and status are determined by birth; there is a hierarchy of social precedence among the castes; there are restrictions on social and cultural intercourse between castes; castes are segregated and stratified with regard to civil and religious privileges; occupations are caste determined with relatively little choice allowed; restrictions on marriage outside one’s sub-caste help maintain the system.
Those historically excluded in Indian society are broadly several social groups subsumed under the Scheduled Caste and Scheduled Tribe categories, the lower strata of caste-Hindus, women, Muslims and some Christians. Until the Constitution came into force in 1950, exclusion was enforced primarily by the traditional caste-based social order. This practice was legally abolished in the 1950s, though it still persists socially.
The caste system has formed the social and economic framework for the life of the people in India. The caste system is based on separation, division of labour, and hierarchy where civil, cultural, and economic rights for each caste are fixed. The division of people falls into four broad categories with several subcategories within them including.
The system implies ‘forced exclusion’ of one caste from the rights of other castes. Exclusion and discrimination in civil, cultural, and economic sphere, is therefore, internal to the system and a necessary outcome of its governing principles. It thus involves the negation of not only equality and freedom, but also of basic human rights and does not recognize the rights and duties of individuals but that of the group as a whole. Though having its origin in the Hindu religion, the caste system has made inroads into non-caste based religions like Christianity and Islam and even anti-caste religions like Sikhism and Buddhism within the country and has been carried overseas by its diaspora. The nature of disabilities associated with social exclusion in India, inter alia, includes:
• Denial and/or restrictions of access to public facilities like wells, schools, roads, post offices, and courts;
• Denial and/or restrictions of access to temples or other places related to worship;
• Exclusion from learning the Vedas and inability to become religious teachers or leaders;
• Exclusion from honorable and profitable employment, relegated to menial employment;
• Residential segregation requiring individuals to live outside the village;
• Restrictions on life style that indicates luxury or comfort;
• Denial of services provided by barber, washer-men, restaurants, shops, theatres etc.;
• Compulsory requirements in the usage of different utensils;
• Imperatives of deference in the forms of address, language, and sitting and standing in the presence of higher castes,
• Restrictions in movement;
• Liability to unremunerated labour for higher castes and obligatory performance of menial tasks
The Dalit Rights Movement
From 1980 to 1996, Dalits garnered the support of small nongovernmental organizations (NGOs), such as the Chennai (Madras) ‐based Dalit Liberation Education Trust and the Volunteer in Service to India’s Oppressed and Neglected etc. The Dalit movement finally attracted international attention in 1996 when the UN Committee on the Elimination of Racial Discrimination (CERD) criticized India for its lack of protection of Dalit human rights.
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)’s scrutiny of India’s treatment of Dalits attracted the attention of Human Rights Watch, and Dalit activist organizations became more organized. Human Rights Watch began preparing its major report Broken People in 1997, which received widespread attention from the media following publication in 1999. The National Campaign on Dalit Human Rights (NCDHR) was created in 1998 to link dozens of Dalits’ rights groups from 14 states in India1. In 2000, the International Dalit Solidarity Network (IDSN) was formed to share information on the international level. The UN Human Rights Commission’s Subcommission for the Promotion and Protection of Human Rights enacted a resolution forbidding discrimination on the basis of work and descent.
In 2001, the Goonesekere Report incited international debate by closely examining worldwide discrimination based on “work and descent” and how the custom infringes on international human rights laws. Dalit activism has benefited from international deliberations as the argument of discrimination has shifted away from the religion of Hinduism and its caste system and toward discrimination on the basis of “work and descent ” (Bob, 2007).
Fulfilling Dalits’ Rights
Recent years have witnessed Government of India taking several measures to overcome historical discrimination of Dalits. These steps include constitutional guarantees, legislative enactments, and policy measures.
The Indian Constitution guarantees all citizens basic civil and political rights and fundamental freedoms. In addition, the Constitution has special provisions prohibiting discrimination based on caste. These provisions are found under the Right to Equality (Articles 15, 16, and 17), the Right Against Exploitation (Article 23), Cultural and Educational Rights (Article 29:2), and prohibition against disenfranchisement in elections based on one’s religion, race, caste or sex (Article 325). Articles 330 and 333 permit Union and state legislatures to reserve seats for members of the Scheduled Castes and Scheduled Tribes (indigenous people or adivasis) based on their population in each constituency. Article 338 mandates the creation of a National Commission for Scheduled Castes and Scheduled Tribes to monitor safeguards provided to them. Finally, Article 341 makes possible the governmental identification of different subcategories of Scheduled Castes in relation to each state. The list of Scheduled Castes or subgroups within the Scheduled Castes, published by the president through public notification, is deemed final.
India has passed various laws to protect the rights of the Scheduled Castes to fulfill the constitutional provisions pertaining to them. These include the Protection of Civil Rights (Anti‐Untouchability) Act (1955); the Bonded Labour (Abolition) Act (1976); the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989) and Rules (1995); the Employment of Manual Scavenger and Construction of Dry Latrines (Prohibition) Act (1993); and various land‐reform laws to redistribute community land to the landless. Finally, to monitor enforcement of some of these laws, the Central (i.e., federal) Government established the National Commission for Scheduled Castes and Scheduled Tribes and the National Human Rights Commission in the early 1990s.
Prosecution of Offenders
India’s criminal justice system has been negligent in its conviction of persons who violate the rights of Scheduled Castes and Scheduled Tribes. In 2005, there were 31,840 alleged criminal incidents reportedly committed against Scheduled Castes and Scheduled Tribes, as defined by the IPC and Special Laws. Although the charge‐sheet rates for crimes against Scheduled Castes and Scheduled Tribes were similar to the national means, the average conviction rates for offenses against Scheduled Castes and Scheduled Tribes were 29.8% and 24.5%, respectively, compared to national rates of 42.4% for IPC crimes and 84.5% for Special Law Crimes. Police personnel act with impunity, as evidenced by the fact that 61,560 complaints were alleged against police personnel in 2005. Only 225 police personnel were tried during that same year, and 97 police personnel were actually convicted (National Crime Records Bureau, n.d.). Unfortunately, the protection of Dalits’ human rights fails in practice due to the impunity of higher‐caste groups and police corruption.
In the wake of the passage of the 86th Amendment (2002), India initiated the Sarva Shiksha Abhiyan (SSA) (also known as Education for All [EFA]), to achieve the mission of Universal Elementary Education (UEE). The basic goal of SSA is to create quality community‐owned elementary education schools for children 6–14 years of age with universal retention by 2010, with a special focus on girls, Scheduled Castes, Scheduled Tribes, and other disadvantaged groups.
According to the Ministry of Human Resource Development, India’s touted SSA program is not effective for Dalit children due to discrimination. Moreover, teachers maintain discriminatory attitudes and practices (NCDHR, 2006). In one such incident in 2001, the officiating headmaster of a government secondary school in Rajasmand, located in the north‐western Indian state of Rajasthan, committed suicide as a result of the harassment and beatings he received at the hands of school staff and teachers.
Some media reports indicate that Dalits are still forced into degrading occupations, such as manual scavenging, bonded labor, and child labor. Dalits who are not forced into degrading occupations are discriminated against by means of lower wages, longer periods of unemployment, and fewer opportunities for work. Dalits have more difficulty getting hired by others because business owners normally prefer to hire those from their own caste. Some Dalits are excluded from crop processing, residential construction, and restaurant work. Dalit agricultural laborers earn less money on average, work less often, and are paid later than non‐Dalit workers. In nonagricultural positions, Scheduled Castes, Scheduled Tribes, and other backward castes (e.g., Sudras or lowest caste group) work fewer days and earn a lower daily wage than higher‐caste laborers (NCDHR, 2006).
Social inclusion cannot be achieved by putting well-phrased nice-sounding laws on the statute book; what is required is political commitment and the will to put political muscle behind their implementation. Social inclusion project is an ideological and political commitment. No political party can attain its social goals by merely incorporating laws on the statute book unless it is dedicated and sincerely committed to its comprehensive social agenda for inclusion of millions of excluded poor who have already missed the bus.
Politics is the main,even primary,force that mobilises deprived social groups to demand from the government implementation of its promises made through laws approved by Parliament. The UPA government should provide political muscle power behind its programme of social inclusion. Law is only an instrument of the government,its impact cannot be felt by the poor if flesh and blood is not provided by political and ideological commitment of the political class.
Amartya Sen 1997, “Inequality, Unemployment and Contemporary Europe.” International Labour Review 136 (2): 155-72.
Bob, C. (2007). “Dalit rights are human rights”: Caste discrimination, international activism, and the construction of a new human rights issue [Electronic version]. Human Rights Quarterly, 29, 167–193.
Arjan de Haan, 1998, “Social Exclusion: An Alternative Concept for the Study of Deprivation?” IDS Bulletin 29 (1): 10-19.
Gerry Rodgers, Charles Gore, and Jose B. Figueiredo, eds. 1995, Social Exclusion: Rhetoric, Reality, Responses. Geneva: International Institute for Labour Studies.
Hilary Silver 1994, “Social Exclusion and Social Solidarity: Three Paradigms.” International Labour Review 133 (5-6): 531-78.
National Campaign on Dalit Human Rights [NCDHR]. (2006). Alternate report to the joint 15th to 19th periodic report of the state party (Republic of India): To the Committee on the Elimination of Racial Discrimination. Retrieved September 6, 2007, from http://www.ohchr.org/english/bodies/cerd/docs/ngos/shadow‐report.pdf