[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.
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.