Tag: Caste discrimination

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Guest Post: The Untouchability provision under the Indian Constitution and its contemporary Interpretation

[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog]

What is Untouchability?

Defining untouchability has always been an arduous task for both the layman and the experts. Britannica defines an untouchable as someone who is a Dalit, officially Scheduled Caste, formerly Harijan, in traditional Indian society, the former name for any member of a wide range of low-caste Hindu groups and any person outside the caste system. Article 17 of the Indian Constitution lays down the provision for abolishing untouchability stating that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. However, the article in itself does not define the term untouchability presuming it is  known to one and all. 

Evolution of Article 17

In pursuance of Article 17, the Parliament passed the Untouchability (Offenses) Act in 1955. However, the Act fails to define untouchability itself. With respect to the practice of untouchability, the Act makes it a crime to disallow any person from entering public veneration due to the practice of untouchability among other things. 

More than 70 years ago, when the framers of the Constitution were debating this Article in the Constituent Assembly, economist and socialist leader K.T. Shah wanted the Drafting Committee to clarify this: ‘We all know that at certain periods women are regarded as untouchables…will it be regarded as an offence under this article? The question arose from the lack of definition of the term “untouchability”. With respect to the same, K.M. Munshi argued that in the draft Constitution, the word “untouchability” had been deliberately placed within quotation marks – thus making it clear that the idea was to “deal with it in the sense in which it is normally understood” (i.e., the narrow, specific sense). Despite this, another Constituent Assembly member, Naziruddin Ahmad proposed an amendment which stated that no one shall be treated or regarded as an ‘untouchable’ on the basis of their caste or religion, thus wanting to water down the word to make it less ambiguous. However, the same was rejected by the Chairman of the Assembly, Dr. B R Ambedkar. 

While some of the debates focused on the caste- centred aspect of untouchability, the definition of the word could not  be narrowed down. From the deliberations over Article 17, it seems that the framers felt the need to incorporate a separate provision for Untouchability in the Constitution apart from Article 14 and 15. It appears from the discussions in the Constituent Assembly that the practice was so widespread and prevalent that the drafters had to specifically call out and criminalise the same. 

Sabarimala Judgement and the Renewed Debate over Article 17

Facts of the case : Sabrimala is a Hindu temple dedicated to Lord Ayyappa, located in Kerala. Being a place of pilgrimage, the shrine is visited by 45-50 million devotees every year. In 1991, the Kerala High Court banned the entry of women above the age of 10 and below 50 years from entering the temple stating that only the priests of the temple can make the decision as to who can and cannot enter the temple. In 2006, the ban was contested  by the Indian Young Lawyers Association who claimed that the ban was  “a violation of ideals of equality, non-discrimination and religious freedom”. The following year, the (Left Democratic Front) government in Kerala led by Chief Minister VS Achuthanandan had filed an affidavit in the court supporting the PIL (Public Interest Litigation) and questioned the ban on entry of women devotees. The Apex Court in 2017 referred this case to a constitution bench with the most pertinent question being : Does this ban on women from entering the temple amount to violation of their fundamental rights as enshrined in the Indian Constitution?

The Supreme Court in 2018 declared the ban on menstruating women from entering the shrine at the Ayyappa Temple as unconstitutional. The majority believed that women must be treated equally with their male counterparts under Articles 14 and 15 and affirmed their right to freedom of religion under Article 25. The petitioners in the case argued that Article 17 of the Constitution prohibited untouchability “in any form.” The question, therefore, was whether the banning of women from entering  the temple fell within the ambit of Article 17. 

For Justice Indu Malhotra, the meaning of the word untouchability was straightforward. According to her, Article 17 intends  to prohibit caste-based untouchability only. It does not cover other forms of social exclusion. In advocating against literal interpretation of the Article, she cites various academics, precedents, and debates of the Constituent assembly to make her point. She even emphasised on the lack of other precedents that grant Article 17 an alternative meaning. 

Justice Chandrachud did not disagree that untouchability primarily includes caste-based discrimination and exclusion, however he did not believe that the provision solely included the aspect of caste. While acknowledging the efforts of the drafters of the Constitution to remove the perils arising out of caste hierarchy, J. Chandrachud took the literal meaning of untouchability in any form to include menstrual taboos in the scope of the Article. He took Article 17’s roots of “purity and pollution” and literally interpreted the phrase “in any form” to advance this provision to the exclusion of women. He Further stated that by the order of prioritisation, the right to religious freedom is to be “exercised in a manner consonant with the vision underlying the provisions of part III.” Therefore, the banning of women from religious worship is subordinate to constitutional values of liberty, dignity and equality. 

Conclusion

Article 17 puts the word “untouchability” within quotation marks, suggesting that its meaning is limited to its specific, historical sense i.e. untouchability based on caste hierarchy. Consequently, while barring of women of menstruating age from a temple is undoubtedly a practice of segregation, exclusion, and enforcement of hierarchies like untouchability, the question remains whether this practice can be included in the term “untouchability.” Justice Indu Malhotra counter arguments and dissenting voice has also been subject to criticism. It is argued that J. Malhotra sets a dangerous precedent when she says that the rationality of a religious practice should not be questioned by the Court. The dissenting argument presented by Justice Malhotra in rejecting the merits of Article 15 and 17, come from a restrictive practice of constitutional interpretation through an “originalist approach” that is based on the intention of the framers of the Constitution at the time of drafting the text. The critics believe that originalism as a method of constitutional interpretation has been losing relevance and becoming redundant while the “living tree” doctrine (the constitution as an evolving and organic instrument) has gained prominence. 

From a reading of the Constitutional Assembly debates, it can be inferred that the framers intentionally left the meaning of the term untouchability vague. It is possible that the framers felt that new forms of social exclusion can arise in the future, thus they did not delve into defining the word. There is, therefore, strong warrant in the constitutional text and drafting history for the broad reading of the term untouchability. To quote J. Dipak Misra, in a recent judgement, “a constant awakening as regards the text, context, perspective, purpose and the rule of law” is to assert constitutional morality and the dignity of women across castes of a particular faith in this case as an overriding constitutional goal. 

* Read Shreya Singh’s article titled “Untouchability In India: An Age-Old “Social Distance” Still Maintained” here to understand Article 17 further. (Read here)

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CISCO Lawsuit: Evidence of Indian-imported Casteism in Silicon Valley

[This is a post by Minnah Abraham, Contributing Editor and Shreya Singh, Contributing Member]

“There is one caste….the caste of humanity”

Dalits in India, the so-called untouchables, are always seen at the bottom of the caste hierarchy in India, which is stagnated and not fluid. Much after caste segregation being banned within the country, disparities and violent discriminatory practices have always been inflicted against Dalits and still continue at different levels.

A few months ago, a suit against CISCO, a multinational technology company in Silicon Valley in the USA by the California Department of Fair Employment and Housing (DFEH), ensued for the wrongful discrimination against a Dalit Indian, by two of his Indian-origin superior co-workers. The CISCO event received a lukewarm response from India and US alike, even so much as calling the whole affair as nonsense, leaving the complainant abashed for playing the victim. The Civil Rights Law, 1964 prohibits discrimination only on the basis of race, colour, sex, national origin and familial status. As this case is still under litigation, the California government is pushing to increase the scope of this Act and include ‘caste’ as a substantial issue in the US laws.

Stressing on the global issue of casteism affecting communities in Asia, Middle East, Africa and in various diaspora communities, the very caste-based discrimination and violence contravene the basic principles of universal human integrity and equality, for this concept differentiates between ‘inferior’ and ‘superior’ age-old categories, which is unacceptable in today’s world. When there is an apparent element of a sense of hierarchy or any sort of manifestation of caste, that deprives oneself of human dignity, this goes against the principles of upholding the human rights of persons belonging to ‘national or ethnic, religious minorities’ as recalled in Human Rights Resolution 2005/79. The annihilation and eradication of those practices will ensure people, a sense of unity and solidarity and gives them a humane way of living, relating to one another. 

A survey commissioned by Equality Labs, a South Asian- American human rights start-up on “Caste in the United States” statistically proved the significance of caste discrimination in American society. The survey resulted that two-third of members belonging to the lowest caste (Dalits) faced caste-based discrimination at their workplace in America. Scholar and social activist Suraj Yengde, working with a non-profit organisation in the US, argues that caste discrimination has been a part of the US since the 1980s and has hardly been addressed by the US media activists. He stated that “People have resisted in private and in public in their own ways. Even hiding one’s caste is a way of fighting caste.”

What happened in the case of CISCO, refers to ‘transnationalization’ of caste, or in simple words, importing casteism to the US. In the words of Paik, “caste distinction is deployed by Brahmins to frame their own merit and put down Dalits as people who do not make it to the merit list at IIT and are got in through ‘scheduled caste’ reservations.” In spite of abolishing the so-called ‘untouchables’ and the Dalit system, which stands lowest in the Indian caste hierarchy of Hindu communities and its practise has extensively prohibited under Article 17 of the Indian Constitution, it failed to stop this vicious cycle of violence. What is worrying is that the attacks have gone up manifold in the last decade, in spite of stringent laws and emergence of hidden stories on caste-based discrimination by Dalits Indian in light of CISCO lawsuit. As B.R Ambedkar, one of the founding fathers of the Indian Constitution and a great political leader once stated, “If Hindus migrate to other regions on earth, Indian Caste would be a world problem.”

The case of CISCO astonishingly brings to light how the Indian communities living, portrayed as educated and skilled in pursuit of the American dream, emphasising in reality, the deep-seated caste-based beliefs which they hold on to, are still undetected.

What can be done?

The questions come to the mind as to how India has failed to implement stringent changes in abolishing the casteism fever which has shamelessly has spread to other nations; Is it the lack of proper implementation of rule of law towards holding the wrongful accountable, inability to understand the transcendence of morality above the particularities of politics play and respect toward a legitimate democracy, legally holding all the stakeholders, ranging from any persons of caste, creed, gender, and religion to persons holding positions, be it government officials, elected party leaders, corporate entities answerable to the laws of the country, accountable to each and every one of the Indian citizens. 

Thirty years have gone past since the Mandal Commission recommended inclusive changes towards the eradication of caste discrimination and recognizing the socially and economically backward classes. One of the most popular recommendations of the Mandal commission report, which still exists today, is the well-debated Reservation Policy in public/government jobs as well as educational institutions. Upon elaborating the report, one might come to a conclusion, not much of the effective inclusive strategies were brought into implementation. Listed below are the notable ones that could still be brought into the light, not to forget the farmers’ bills which, of course, resulted in angst and dissatisfaction among the farmer’s society. 

1. The financial assistance to the Agricultural sector  – As most fall in this category consisting of village artisans (skilled/unskilled), landholders, tenants and labourers, it is essential to introduce policies to ensure the concerned Dalit community is able to participate in the fast-paced economy, with the provision of support and financial incentives

2. Creation of employment in the Private sector for youth from backward classes – It is imperative to revive the private sector and manufacturing units to attract the youth towards employment positions rendering them a potential advantage towards growth. This, on the other hand, will lessen demand for job creation in the public and government sector.

International EU laws have another way of tackling the discriminatory practice, knowns as the principle of subsidiarity which amazingly calls for community-wide inclusive measures ensuring the minimum protection standards set against the practice of discrimination in all Member States. This extends not just in the employment sector, but in the healthcare, social sector and education. Recognising and implementing the practice of equal treatment, especially in the work sector, affirming European Commission’s ‘Renewed Social Agenda: Opportunities, Access and Solidarity’, where each person in the society, irrespective of differences is seen as being of equal standing, without any interference from discrimination of any sort of perception of artificial barriers, which often holds oneself to take a step back and depriving the rightfully inherent opportunities. 

It is a peremptory time to consider the consequences of not paying attention to casteism reflected in the society within India and its spread toward neighbouring countries. This can render an opportunity to bring forth institutions, collaborations, nationally and internationally to work toward achieving a respectable community at global level, leaving the next generation without having to fear being able to express or practise at his/her own accord. 

Concluding remarks

The CISCO case has been filed under Title VII of the Civil Rights Act, 1964 which prohibits discrimination only on the basis of race, colour, religion, sex and national status. Unfortunately, this doesn’t address the issue regarding caste discrimination. However, California’s Fair Employment and Housing Act (FEHA) mentions the prohibition of bias based on ancestry which can open gates for interpretation by the court and include caste-based discrimination. This can be a ray of hope to the Dalit community living in the US and help them break the shackles and escape from this nightmare.  

In order for the Dalit community to cope up with these societal drawbacks, it is necessary to sensitise the public and spread awareness about the existence of caste-based discrimination in the American workspace. Corporates and non-profits in the US, especially tech companies which recruit South Asians at a large scale must have an understanding of Caste in general. There should be regular training organised for the Human Resources Department to address issues related to different levels of Caste Discrimination in American companies with South Asian employees.  

The existence of the Indian caste system is not recognized in the US and therefore, it’s not written in the US laws to prohibit caste-based discrimination. This gives the opportunity to Indian communities, who have transported to the US to exploit the very system, Indian founding fathers of Constitution are seeking to protect and eradicate the ancient notions of a hierarchical society. Although the discriminatory notions of racisms and casteism, which seeks to dignity, based e, colour, gender and hierarchical classes have a long way to go across the nations, the lawsuit against CISCO can set a precedent. This unfolding of events can act as a catalyst to bring an awareness of caste-based discrimination and how a perfectly structured modern, rational, and educated people are prone to slipping to old ways. 

A question arose in my mind while reading this article, i.e. when the claimed condition of Dalits in their native country is not so well, how can we expect another nation altogether to treat them well? If possible, highlight more on the fact that how the Indian state is not reacting to something like this.

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Untouchability In India: An Age-Old “Social Distance” Still Maintained

[This is a post by Shreya Singh, Contributing Member]

This article is divided into two parts. The first part explains about “Untouchability” posing as a social issue in Indian society and the efforts made by the government to tackle this issue through legislation and policies. The second part of this article is a critical analysis of the CISCO caste discrimination case which took place overseas and renders an awareness of how so-called “modern” Indians are capable of slipping back to this age-old practice.  

In an era of globalisation and industrialisation, India constantly strives hard to remain on the golden chariot for better development and infrastructure. Although India is making great strides in various fields, it is still held back due to untouchability which is the offspring of an age-old Caste System. Untouchability has been a long-term disease afflicting the Hindu society for centuries and has slowly but surely infected other religions in India as well. Historians and experts claim that the caste system followed today is heavily manipulated by the ‘Brahmanical-texts’ in order for them to stay in power in the hierarchical system. The Hindu ideologies that are propagated today are based on “Brahmanism” as it exists in a textual form (more accurately, a theory) which caters to the ulterior motives of the Sanskrit-oriented high castes. 

“Religion must be a matter of principles only. It cannot be a matter of rules. The moment it degenerates into rules, it ceases to be a religion, as it kills responsibility which is the essence of the true religious act.”- Dr B.R. Ambedkar

In his book Annihilation of Caste, Ambedkar gave examples of the various practices that were adopted in different states in India. From not being allowed to enter the village, to being prohibited from treading the path walked by a high caste Hindu, the untouchables have faced it all. They were forced to tie a black thread on their wrist for others to identify them as untouchables.  Religion became a matter of rules, not principles.

Constitutional and Statutory Provisions

The vicious act of “Untouchability” was observed as a Social Custom before the commencement of the Constitution. Draft Article 11(Article 17) was discussed during the Constituent Assembly on 29th November 1948. The term “Untouchability” is abolished under Article 17 of the Constitution of India but has never been defined. This was addressed as a Fundamental Right to promote consciousness amongst law and policy-makers. Article 17 states that- “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law”.

During the Constituent Assembly Debates, Mr K.T. Shah showed his concern regarding the vagueness of the term and the absence of a definition clause which could lead to misinterpretation. Mr Nazzirudin Ahmad with an intention to make the definition more specific proposed an amendment by adding the term “caste” and “religion” in the definition which stated that,

“No one shall on account of his religion or caste be treated or regarded as untouchable.”

This was rejected by the Assembly as there were concerns regarding the restriction of the scope of Article 17 of the Constitution of India.  Justice Nittoor Srinivasa Rau, former Chief Justice of Karnataka observed that “the subject matter of Article 17 is not untouchability in its literal or grammatical sense but the practice as it had developed historically in this country“. Based on the constitutional provision, the Protection of Civil Rights Act, 1955 was introduced by the Central legislature to prescribe punishment for practising “Untouchability” and was later modified into SCs and STs (Prevention of Atrocities) Act, 1989 which provides them with special protection. However, the SCs and STs (Prevention of Atrocities) Amendment Act, 2018 was considered to be arbitrary and faced backlashes.

Despite the numerous efforts made towards the eradication of this social stigma along with the undivided attention of the government, this custom still remains a huge problem in our Indian society. A major factor which results in the promotion of the caste system is the Dalit vote banks and caste-based politics. Indian politicians promote the caste system in the garb of drawing votes, to continue staying in power.

There have been major gaps in the implementation of Rule of law. A Dalit girl’s family had to face social boycott for plucking flowers from an upper-caste Hindu family’s garden. We can observe how the caste system plays a major role in promoting untouchability and is probably the only reason for its existence. The Indian Constitution prohibits discrimination against caste but there is no provision that declares the abolition of the Caste System itself. The Caste System has been deeply ingrained in the Indian Hindu society.

“The outcaste is a by-product of the caste system. There will be outcastes as long as there are castes. Nothing can emancipate the outcaste except the destruction of the caste system.”– B.R. Ambedkar

The Equality Bill, 2019- A ray of hope ?

Keeping in mind of the various levels of discrimination that takes place in India, the Centre for Law and Policy Research has introduced the Equality Bill, 2019 which is an amalgamation of all the anti-discrimination laws covering intersectional, structural and systemic discrimination which includes sexual orientation, caste, gender identity, sex, age, etcetera. (the Bill will be discussed later on this blog) The bill has been inspired by UK, Australian, South African law and promotes equality by providing civil remedies to the victims of discrimination. This bill bids adieu to the old statutes related to anti-discrimination and is presented as an advanced model to curb discrimination by providing civil remedies, and not the usual criminal penalisation. Unlike criminal law, here is special attention to the enforcement of the law by minimizing the burden of proof by shifting it from the petitioner to the respondent i.e., the accused will have to prove his/her innocence in front of the court.

There still has to be further discussions regarding the need to strike a balance between the rights of both the parties. However, the bill, if passed, will bring about a revolution in India and would act as a reference model regarding anti-discriminatory laws on a global level.

Conclusion

Though there has been a significant reduction of cases regarding caste discrimination due to comparatively progressive laws, education and social awareness, untouchability hasn’t diminished in our surrounding and still manages to thrive despite the measures taken. Untouchability has managed to deepen its roots on the Indian soil and is still affecting the depressed classes. It has caused widespread hatred and oppression towards a community based merely on their birth. This has increased to such an extent that it is affecting Indian citizens living abroad (see here). The CISCO caste discrimination case which took place in Silicon Valley is a solid example. Due to the inefficient implementation of the laws, this social issue is going out of hands and has crossed national boundaries. The various nuances of this case will be further explained in the next article.