CASTE INJUSTICES AND LEGISLATION

03/02/2015

 

CASTE INJUSTICES AND LEGISLATION

 

It is the sad truth that even after 67 years of independence we still hear of caste injustices every day. These include rapes, murders, lynching, land stealing, public stripping and all manner of other humiliations. The Dalits, it would seem, have no recourse to justice in the true democracy which India purports to be.

 

Since independence in 1947 governments have passed legislation of various kinds to protect the Dalits from harm by members of the upper castes? How effective are these laws in practice, in terms of their impact upon the lives of those they were passed to protect? I thought it would be interesting to look at some of these laws and to examine their effectiveness in practice.

 

The legislative starting point is the Constitution of India which was principally drafted by India’s brilliant lawyer, economist and Dalit leader, Dr Ambedkar. Article 14 grants to everyone equality before the law and Article 15  prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 17 unequivocally abolishes the concept of untouchability.

But the Constitution was just a starting point. Soon after independence a spate of legislation was passed to protect the Dalits (or Harijans as they were then called). One of these was the Bombay Harijan Temple Entry Act of 1947. This provided that Hindu temple authorities (almost exclusively Brahmins) could not prevent Harijans from entering their temples. A series of separate Temple Entry Acts were passed to cover other states in India between 1947 and 1949 and these were all consolidated in the Protection of Civil Rights (PCR) Act of 1955. This Act provides:

 

Section 3:

Whoever on the ground of "untouchability" prevents any person -

  • from entering any place of public worship which is open to other persons professing the same religion or any section thereof, as such person; or

  • from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or water-course 4[river or lake or bathing at any ghat of such tank, water-course, river or lake] in the same manner and to the same extent as is permissible to the other persons professing the same religion or any section thereof, as such person;

[shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees].

Explanation: For the purposes of this section and section 4 persons professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or developments including Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the Sawaminarayan Sampraday shall be deemed to be Hindus

 

Section 4

Whoever on the ground of "untouchability" enforces against any person any disability with regard to-

  • access to any shop, public restaurant, hotel or place of public entertainment; or

  • the use of any utensils, and other articles kept in any public restaurant, hotel, dharmshala, sarai or musafirkhana for the use of the general public or of [any section thereof]; or

  • the practice of any profession or the carrying on of any occupation, trade or business [or employment in any job]; or

  • the use of, or access to, any river, stream, spring, well, tank, cistern, water-tap or other watering place, or any bathing ghat, burial or cremation ground, any sanitary convenience, any road, or passage, or any other place of public resort which other members of the public, or 1[and section thereof], have a right to use or have access to; or

  • the use of, access to, any place used for a charitable or a public purpose maintained wholly or partly out of State funds or dedicated to the use of the general public or 1[any section thereof]; or

  • the enjoyment of any benefit under a charitable trust created for the benefit of the general public or of 1[any section thereof]; or

  • the use of, or access to, any public conveyance; or

  • the construction, acquisition, or occupation of any residential premises in any locality, whatsoever; or

  • the use of any dharmshala, sarai or musafirkhana which is open to the general public, or to [any section thereof]; or

  • the observance of any social or religious custom, usage or ceremony or [taking part in, or taking out, any religious, social or cultural procession]; or

  • the use of jewellery and finery;

  •  

[shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees].

 

[Explanation - For the purposes of this section, "enforcement of any disability" includes any discrimination on the ground of "untouchability"].

 

Just reading the provisions gives us some idea of the types of discrimination that exists in Indian society, which extends to Dalits being excluded from using the same river, stream, spring, tank, road, passage, etc as the upper castes. Imagine barring a human being from worshipping in a temple simply because he or she is a member of one of the Dalit castes.

It appears that the 1955 Act did not provide sufficient protection to the Dalits. Not only that it seems that over the years a whole list of indignities not previously noted in legislation were perpetrated upon the Dalits. Thus, in 1989 yet another Act was passed, popularly called the Prevention of Atrocities Act, whose provisions make interesting reading. Chapter 2 of the Act provides:

 

  • Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -

  • forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance

 

  • acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste, or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;

  • forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity

  • wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;

  • wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water

  • compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do 'begar' or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government

  • forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law

  • institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe

  • gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe

  • intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view

  • assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty

  • being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed

  • corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or a Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used

  • denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to

  • forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence

shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

 

  • Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -

  • gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death

  • gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine

  • commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine

  • commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine

                                         

  • Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -

  • gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death

  • gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine

  • commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine

  • commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine

                        

You can see by reading the Act just what types of humiliations the Dalits face: having faeces thrown at them, having their drinking water contaminated, being made to eat or drink “obnoxious” substances (whatever these may be), wrongly having civil or criminal charges  brought against them or even finding themselves being framed for all sorts of crimes, including murder.

 

The concept of untouchability, it seems, is so deeply rooted in the Indian psyche that getting rid of it is proving almost impossible. The hearts and minds of  the upper castes have been hardened so much by almost four thousand years of Brahminism in action; when you believe that you are superior to another human being, and that the superiority has been sanctioned by god, your mind is not going to be changed by mere sections and sub-sections of Acts which you believe are unfair to you in the first place. As a result of this mindset Dalits are still barred from schools, hotels, temples and even crematorium grounds belonging to the upper castes.

 

THE SWAMINARAYAN SECT CASE

 

Legislation alone is insufficient to cure societal evils. The upper castes are not going to simply throw out their caste prejudices simply because some law tells them to. No, they have gone to great lengths to get around the legislation. There was a very interesting Supreme Court case on caste as far back as 1966. I was surprised to note that the Swaminarayan Sect, which is nowadays trying to brand itself in the Diaspora as mainstream Hinduism, once went to great lengths to prevent the Dalits from entering its temples. The case of SASTRI YAGNAPURUSHADJI AND OTHERS-v- MULDAS BRUDARDAS VAISHYA AND ANOTHER  went all the way to the Supreme Court and the apex court delivered its judgement on 14th January 1966.

The legislation that the followers of the sect, known as Satsangis, complained of was Section 3 of the Bombay Hindu Places of Public Worship (Entry Authorisation) Act 1956 which provided, in essence, that all places of public worship shall be open to all classes of people. In other words, you cannot prevent a Dalit from entering a Swaminarayan Temple.

The followers of the Swaminarayan sect, known as the Satsangis, tried to get the courts to declare that the 1956 Act  was ultra vires because it fell foul of Article 26(b) of the Indian Constitution which provides:

 

 Subject to public order, morality and health, every

religious denomination or any section thereof shall have

the right—

(a) to establish and maintain institutions for

religious and charitable purposes;

(b) to manage its own affairs in matters of religion.

 

The Satsangis put forward two highly novel arguments. Firstly they said that whilst culturally they could be thought of as Hindus they were not really Hindus but a separate religious group altogether and were therefore not restricted by the provisions of Section 3 of the 1956 Act. In other words they tried to get themselves removed from the definition of Hindus so that they could throw Harijans or Dalits out of their temples at will and with impunity.

Secondly they claimed that S3 was ultra vires in that it contravened Article 26B which gave them, as a religious denomination, the right to govern their own affairs and S3 was stopping them from doing this properly.

 

The Supreme Court was, needless to say, having none of this and threw the case out, holding that the Satsangis were, in fact, Hindus and that there was no merit in the argument that S3 was ultra vires. The appeal was dismissed with costs. The full judgement makes very interesting reading in which the Supreme Court also delivered a very educative and succinct summary of the history and beliefs of the Swaminarayan sect in its judgement.

 

In a more recent case Justice Markanday Katju, retired Supreme Court judge and current president of the Press Council of India, has said that the caste system is one of the greatest social evils plaguing India today. The Supreme Court made this observation in criminal appeals 958 and 959 0f 2011, which ruled on cases where inter caste couples were caught and killed by villagers in so called “honour killing” instances. It is a sad indictment of society that these killings still go on in India.

 

CONCLUSION

 

Whilst legislation has had some effect in improving the lot of the Dalits since independence a whole lot more needs to be done if caste differences are to be eliminated. Unless there is a fundamental change in the mindset of the so called upper castes very little can be done. Until and unless we accept that caste was not created by god we will not be able to have a full and frank discussion. Given the evidence of what has happened since independence the future continues to look bleak for the Dalits. Slogans like “India is shining” wear thin when over half the population are excluded from the fruits of the economic success that India is currently enjoying. Successive governments continue to make the right noises, especially at election times but between elections the needs of the poorest are put on the back burner. It is caste which is preventing us from uniting as a nation and going forward. We must banish the evil of  caste which has plagued our nation for far, far too long.

 

NOTE: As I have done in my book I have here deliberately refrained from writing the word god with a capital G. I have also deliberately refrained from describing the upper castes as the “so called” upper castes or in inverted commas as others have chosen to do.

 

 

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