August 25, 2001
CASTE, RACE AND THE CONSTITUTION
by Prof.
RAVIVARMA KUMAR.
Advocate,
Karnataka High Court, Bangalore
and
First Chairman,
Karnataka State Commission on Backward Classes.
#37, Second
Main, Vyalikaval, Bangalore - 560 003.
India is not only a union of 27
States, but it is also a union of 5,000 castes. A recent study undertaken by
Anthropological Survey of India has recorded the existence of 4693 castes.
(Singh 1998 : xiii)
A caste
is a class based on descent. They are arranged in a heirarchical order and are
stratified. No two castes have the same social status. Every caste has its own
rank. “In fact it is more realistic to say that there are probably as many
hierarchies as there are castes in India.
To believe that there is a single caste order to which every caste, from
Brahmin to untouchables, acquiesce ideologically, is a gross misleading of
facts on the ground”. (Gupta, 2K : 1)
Connubium and commensality are the
hallmarks of a Hindu caste. Purity and pollution are an integral part of this graded inequality. Endogomy is the rule
that has perpetuated the caste system. The plurality of castes and their
continuity has no parallel in any other social order in the world.
Caste is more deep rooted than any
other social Institution. Conversion is possible from one religion to another.
Conversion is also possible from one language to another. But conversion from one caste to another is unknown. By a change of religion one may become casteless. But that status is
temporary and it is only in a state of suspended animation. For example, if a
Scheduled Caste Hindu becomes a Christian, caste disappears only temporarily.
On his re-conversion to Hindu fold, he will not only become a Hindu, but he will revert to his original
caste, if he had lost it at all.
(ANBALAGAN V. B.DEVARAJAN - AIR 1984 SC 411).
Such is the fate of a Hindu that even if he ceased to be a Hindu, his
original caste continues to haunt him.
The
membership of a Caste is based on birth and birth alone. Social status is
determined on the basis of ascription.
Paper presented at the seminar on
Racism and Racial Discrimination organised by the National Human Rights Commission and the National Law School of
India University at Bangalore on 03-08-2001.
IS CASTE A RACE ?
It is undisputed that the present
day caste distinctions in India have their roots in the varnashrama of
Hindu religion. The varnashrama itself is a division of the two races,
namely, Aryan and Dravidian.
Dr. Ambedkar attributes the race
theory to the western writers and sums it up as follows :
(i) The people who created the Vedic literature
belonged to the Aryan race ;
(ii) This Aryan
race came from outside India and invaded India;
(iii) The
natives of India were known as Dasas and Dasyus who were ra-cially different
from the Aryans.
(iv) Aryans were
a white race:
Dasas and Dasyus were a black race:
(v) The Aryans
conquered the Dasas and Dasyus.
(vi) Dasas and
Dasyus after they were conquered and enslaved were called Shudras.
(vii) The Aryans
cherished colour prejudice and therefore formed the chaturvarnya whereby they
separated the white race from the black race such as the Dasas and Dasyus.
“These
are the principle elements in the western theory about the origin and position
of the Shudras in the Indo-Aryan Society. Whether it is valid or not is another
matter. But this much must certainly be said about it that after reading the
Brahminic theories that their long and tedious explanations attempting to treat
a social fact as a divine dispensation, one cannot but feel a certain amount of
relief in having before oneself a theory, which proceeds to give a natural
explanation of a social fact”. (Ambedkar, 1990 : 65).
He
however strongly disputes that Shudras belong to a different race and puts
forward his own theory that Shudras were Kshatriyas. Brahmins refused to
perform Upanayana to Shudras and degraded them into a separate varna.
Anthropologist
S.V. Ketkar even while doubting the correctness of the race theory concludes “It is true that in some parts the
higher castes, are of Aryan descent and the lower ones are of Dravidian descent
but this is not universal” (Ketkar, 1998 : 170).
Be that as it
may. There is no dispute that the untouchables were outside the four fold
varnashrama. There is also no dispute that they always remained outside varnasankara mixing of the races, that was singularly responsible for creation
of the numerous castes and sub-castes through inter varna marriages among
Hindus. So it can safely be concluded that the untouchables were racially
different from rest of the caste Hindus
and untouchability is, in its form and essence, racial discrimination perse.
CASTE SEGREGATION APART IS APARTHEID
We need not get bogged down by this
controversy. Caste is the most complex phenomenon. No single theory can
conclusively establish its foundations. For our present purpose we are guided
by the expanded definition of racial discrimination as contained in Article 1
of the “International Convention on the Elimination of All Forms of Racial
Discrimination”(CERD) adopted by the United Nations General Assembly, Resolutionon on December 21, 1965. Article 1 reads -
“1. In this
convention, the term racial discrimination
shall mean any distinction, exclusion, restriction,
or preference
based on race, colour, descent or national
or ethnic origin, which has the purpose or
effect of
nullifying or
impairing recognition, enjoyment or exercise,
on an equal
footing of human rights and fundamental
freedom in the
political, economic, social, cultural,
or any other
field of public life”.
There is no dispute that there exists in India
caste discrimination, which is deep rooted and omnipresent. It has brought about large scale seggregation. In Karnataka
alone there are about 30,000 segregated habitats of untouchables and other low
castes and tribes, which outnumber the
number of revenue villages where the upper caste people live.
The Scheduled Caste Holeyas,
Madigas, Voddas & Lambanis, the Scheduled Tribes like Nayaka, Beda and the
Backward Tribes like Golla and Uppara live in these hamlets. Education has been
denied to them for centuries on the basis of caste. Drinking water is
denied on the basis of caste. Temple entry is denied on the basis of caste.
Even basic social services like hair-cutting, and dhobhi services are regulated
on the basis of caste. Untouchability, unapproachability, unseeability and even
unthinkability are entirely rooted in
caste. Even South African Apartheid didnot carry discriminations to this
barbaric level much less was there any whisper of pollution by the whites. It is nobody’s case that the caste
discrimination in India is not based on descent much less is it their case that
caste system has not denied recognition, enjoyment and exercise, on an equal
footing, basic human rights and fundamental freedoms in the political,
economic, social, cultural and other fields of public life.
Above all we should not forget the
object of the World conference against Racism. It is to promote egalitarianism
and eradicate all forms of discrimination based on birth and descent. Caste is
undoubtedly one such form of
discrimination. It’s very existence is a shame and blot on humanity. Art. 1 of
the universal Declaration of
Human Rights declares : “All human beings are born free and equal in dignity
and rights”. In article 2 it prohibits discrimination, interalia, on grounds of social origin, birth or other status.
Similarly International covenant
on civil and political Rights, 1966 prohibits
discrimination, interalia, on grounds of social origin, birth or other status.
No
signatory to this declaration, more so
India which is at the forefront to eradicate distinctions, restrictions and
discriminations opposed to these Declarations, can oppose a discussion by a world conference to combat caste
seggregations and inequalities.
According to the New Shorter Oxford
English Dictionary, T.I. Edition, the word ‘apartheid’ is a Afrikaans word
literally meaning separateness. This word is derived from the Dutch word
‘apart’ meaning apart + ‘heid’ meaing hood. Therefore it literally means ‘aparthood’.
Any separateness or seggregation
that keeps castes apart is also apartheid. Hindus are born in castes, work in
castes, marry in castes, die in castes and are even burried in caste cemetries
always apart. This is nothing but apartheid. A nation which took pride in
inviting Nelson Mandela cannot now push the caste apartheid under the carpet.
It is therefore beyond doubt that
as per Article 1(1) of the CERD includes all forms of caste discrimination meted out to the Madigas, Holeyas, Chamars
and other untouchables numbering over 240 million.
Pre-Constitutional
efforts to tackle caste discrimination :
Before the British arrived in India
caste dominated the law and the administration of justice. As a matter of fact the entire State
apparatus and the law was geared up to maintain and consolidate the caste
stratification of the society. The caste system had not only the sanction of
law, but also of the State and the Religion. The Mandal Report lists a series
of such sanctions leading to barbaric
practices entirely based on caste.
Thus by the time the British
arrived in India, caste discriminations were settled and the entire society was
divided into thousands of compartmental wings regimented to follow caste rules
in all walks of life, private and public. Caste ruled the fate of the man in
political, educational, social, cultural and economic spheres. Even his
occupation had to be in accordance with the caste rules. One and the only form
of acquiring membership of a caste was by birth. These discriminations were
entirely based on descent.
On their arrival the British
administration was not very keen to interfere with the social order in India.
As a matter of fact there is a vital difference between European colonies in
the Americas and Africa, and their colony in India. In the earlier two
settlements the European invader had gone there to settle. Secondly they not
only brought about social and cultural changes in those societies, but also
ensured overall development of the nations raising the living stamdads of the
original inhabitants also. They mixed slowly but freely with the indigenous people and brought about a radical
transformation over a period of time.
In all these countries, liberty,
equality and fraternity were inculcated as social, economic and political
values. More importantly the invaders had been there to settle and not plunder
and loot. They made it their home-land and dedicated themselves to the development of the societies where they
lived. The United States, Canada, South Africa are good examples of such
developed former colonies of Europeans.
In contrast the British came
to India only for purposes of trade.
Throughout their stay in India their interest was only to make gains and return
to their mother-land. They never intended to settle down in India and make it
their home-land. For this purpose they were very reluctant to develop the
nation as a whole. The only reforms they brought about in the fields of
education and communication were limited to get necessary local assistance for
their administration and to enable them to move the troops through out the
length and breadth of the country. Particularly in the social sector the British
followed a hands off policy. They realised that unlike the colour
discrimination which was transperent and simple, caste discrimination was deep
rooted and complex phenomenon of a frozen social order. They found caste was
more deep rooted than religion or
colour. Even though there were attempts to
convert from one religion to another no attempt was made to impair the
caste system. They also realised the difficulty in medling with the caste
distinctions or upset the well entrenched pyramid of caste heirarchy. The
failure of Buddism, Jainism, Sikhism and Veerashaivism against Hindu Caste
system must have scared them from
venturing into any act of social reform. It is in these circumstances that the
Britishers first insulated themselves and their administration from the caste
system.
The following measures may be listed in this behalf :
(i) Section 8 of
the Bengal Regulations III of 1793 ;
(ii) Section 21
of the Bombay Regulation II 1827 ;
(iii) Caste
Disabilities Removal Act, 1850 ;
(iv) Section 9 of the Civil Procedure Code making caste a non
justiciable issue keeping it out of ‘a civil dispute’.
this withdrawal of the British from
administering the caste questions had a further consolidating effect on the
caste system itself.
“Now, law is not the only sanction
which goes to sustain social
institutions. Institutions are sustained by other sanctions also.
Of these, religious sanction and
social sanction are the most
important. The Varna system has a
religious sanction, the Varna
system has the fullest social
sanction from the Hindu society.
With no legal prohibition, this
religious sanction has been more
than enough to keep the Varna
system in full bloom”.
(Ambedkar, 1990 : 13)
The only mass
movement which had made agreat social
impact during the British regime was the freedom movement. The freedom movement
was spear headed by the Congress Party. The Congress Party was dominated by
orthodox upper-castes. In the fight against British, it happenned frequently,
to mix politics with religion resulting in perpetuating the caste inequalities.
After the frustration of Ambedkar’s campain for separate electorate and driving
out Jinna from Congress, the orthodox elements in Congress gained an upper
hand. As a result, during the pre-independent days, no popular effort to
destroy caste hegemony was possible, Ambedkar’s sustained efforts and Ramaswamy
Naikers self-respect movement notwithstanding. It is in this situation that the
Constituent Assembly, began its deliberations.
The limitations of the Constituent Assembly.
The Constituency Assembly elections in July 1946
brought the Congress to power. The
Congress enjoyed monopoly in the Assembly deliberations. As a matter of fact the very process of
elections had inherent limitations. The restricted franchise established by the
VI Schedule of the Government of India Act, 1935 excluded the majority of
countrymen who were peasants and labourers. The electoral college was confined
to tax payers, big property holders and highly qualified persons, constituting only
28.5% of the adult population of the
provinces. Economically and socially depressed persons were virtually
disenfranchised. (Austin, 1966 : 10).
According
to the data made available by Granville Austin in his book, “the Indian
Constitution : the Corner Stone of a Nation”, out of about 161 members of the
Constituent Assembly, of the Hindu members over 75% represented the Dwija
castes. There were only 7 Scheduled Caste representatives. All the 7, including
Dr. Ambedkar, vowed their membership to Congress party. It is this constituent Assembly which had to
evolve the policies and programmes to usher in equality.
The partition of the country and
the ensuing genocide had demoralised the secular forces in general and the
minorities in particular. The Muslims,
the Christians and the Sikhs were in no mood to make big demands. The
Socialists had split from Congress early in 1948 to become a separate party.
They had boycotted the Assembly elections. That decision had kept stalwarts
like Dr. Ram Manohar Lohia, Jayaprakash Narayan, Aruna Asaf Ali, Acharya
Narendra Dev, Purushotam Trikam Das, Kamala Devi, Achut Patwardan and Ashok
Mehta out of the Constituenty Assembly. The assasination of Gandhiji had
consolidated the leadership of the Congress oligarchy headed by Nehru.
In this situation the voice of men
like Ambedkar to usher in a casteless society was not heard. Ambedkar on his part could not even muster necessary
strength to put it on the draft Constitution his own draft of the following
provision:
“Any privilege or disability
arising out of rank,
birth, person, family, religion or
religious usage
and custom is abolished”.
Not even the Drafting Committee accepted this provision.
In its place the present Article 17 based on K.M. Munshi’s draft of the
fundamental rights was incorporated and enacted. Even the Scheduled Caste
members such as Jagajivan Ram did not support or press for the draft suggested
by Ambedkar. In the circumstances the Assembly failed to take a bold decision
to abolish caste. Thus establishment of a casteless society as a national goal,
does not find place even in the derective principles or the preamble to the Constitution (Wad, 1984 : 17).
The collective rights of the people on the
constitutional goal to achieve liberty,
equality liberty and fraternity,
are found in the Directive Principles of State Policy of our Constitution. But
these principles have been made unenforceable by virtue of the provision enacted under Article 37. As a
result we have today enforceable rights of individuals while the collective
rights under the Directive Principles of State policy, have been rendered
non-justiciable.
The Directive Principles of State Policy are modelled on
similar policies contained in the Irish Constitution. The Constitutional
Advisor to the Assembly Sir B.N.Rau had discussions with President De Velara on
the working of the Directive Principles in relation to the Fundamental Rights
under the Irish Constitution. On the basis of that experience Sir B.N. Rao
proposed an amendment so as to emphasise funamental nature of the derective
principles and to add a clause to place the
Directive Principles on a higher pedestal than the Fundamental Rights.
The minutes of the Drafting Committee show that these amendments were either
not considered or not accepted (Seervai, 1993 : 1925). With this failure the
efforts to remove caste inequalities were finally doomed.
CONSTITUTION AND CASTE
ANNIHILATION
A close perusal of the debates in
the Constituent Assembly discloses the tension under which the issues concering
caste were debated. Stiff opposition was seen every time provision in the draft
Constitution to bring about social equality was considered. In the process with
all its limitations, the Constituent Assembly could enact only a very few
provisions to build a casteless society. Notable provisions that came to be
enacted are the provisions of reservations in services under the State under
Article 16(4) of the Constitution and political reservations contemplated under
Articles 330 and 332. Beyond this nothing could be achieved. Be that as it may,
the Constitution boldly proclaimed, in its Preamble, the goal of accomplishing
social justice and equality. Article 14 emphatically laid down the principle of equality. Articles 15,16 and 29
further elaboarated the concept and prohibited discrimination on the ground of
religion, race and caste. However, Article 15 confined the prohibition against
discrimination only to State action. Article 16 confined it to employment under
the State, while Article 29 restricted it to educational institutions.
Establishment of a casteless society as a national goal, does not find place
even in the directive principles or
preamble to the Constitution.
In the circumstances it has become
convenient to say that there is no Constitutional mandate to eradicate caste
inequalities in the society. Even the
provisions for uniform civil code contained in Article 44 of the Constitution
is only a directive principle which has remained a dead letter till this day.
While concluding that the Constitution surely provides a mandate to confine
caste distinctions within the narrowest limits, Marc Galanter laments:
“The Constitution sets forth a
general programme
for the re-construction of Indian
Society. Inspite
of its length, it is surprisingly
undetailed in its
treatment of the institution of
caste and existing
group structure in Indian society”
(Galenter 1984 - 352).
Even the provisions of affirmative
action contained in the Constitution are far from adequate. The entire private
sector is under no obligation to do social justice to the Backward Castes,
Scheduled Castes and Scheduled Tribes. In the Legislature reservation has been
provided only in the Lower Houses.
There is no reservation provided in the Council of States at the Centre and the
Legislative Councils in the States, though reservation has been provided for
teachers, graduates and local authorities. Only recently reservation has been
provided in the local authorities. Reservation in political institutions has
not helped removal of caste inequlities. Reservations operate in the
constituencies with joint electorate and the beneficiaries are always in a
minority. In order to get elected from such constituency, the representatives
of the exploited castes, will have to be at the mercy of the majority exploiting castes. Unless a candidate serves
the interest of the majority, the
majority will never elect him . A potential candidate who could antagonize the
majority, aggressively working for the welfare of his people, will never be
elected. In order to contest and win from such constituencies they are also at
the mercy of national political parties which are always under a high command of the upper -castes. The political
parties do not field worthy candidates who could champion the cause of lower
castes against the interest of the upper castes. This situation is better
illustrated by Mr. B.P. Maurya, a national leader belonging to the Scheduled
Castes, when he laments.
“This
system does the Scheduled Castes no good because the people in the reserved
seats belong to the party in power and are often incapable persons. Although
they are educated they do not speak out against the party in power. They do not
represent their people to the party and the Government, but represent the party
in power to their people”(Quoted in Yadav - 1988 : 24).
A finding in a project report
on SCs and STs commissionned by the State of Karnataka is
revealing :
“... Political reservations minus
concern for SC and ST
problems has lead to serve personal and family interests
so far. SC and ST
political leaders by a curious combination
of factors, buit-in checks and
personal limitations have not
and cannot play the role cxpected
of them. So there are
politicians and no leaders among
them” (Shankar, 1997 : 495).
This
supplies the reason why Ambedkar strongly fought for separate electorate and
succeeded, only to lose it in the Poona pact.
In
any democracy an independent judiciary plays a vital role and is considered to
be an arm of the social revolution. The Indian Judiciary is perhaps the most
poweful judiciary ever to be found working under a written Constitution. The
power of judicial review can strike down even an amendment to the Constitution.
The judiciary has armed itself with all the powers to appoint Judges literally
eliminating any role for the Executive
in the appointment of Judges to the
High Courts and Supreme Court. As a result the power of appointment of Judges
is not accountable before any forum much less to the people of India. The
failure of our Constitution to enact a provision for reservation in the higher indiciary has cost the nation very dearly. A similar
situation obtained in the new South Africa afer dismantling the apartheid. The
author was invited along with his senior Sri. L.G. Havanur, the Chairman of the
first Karnataka Commission for Backward Classes to deliberate over the policy
of affirmative action to be incorporated in the Constitution of the the new South Africa. It is a matter of
great pride that their contribution has yielded rich dividends. The
Constitution of South Africa in its preamble recognises injustices of the past
and believes that the people are united
in their diversity and proposes to “heal the divisions of past and establish a society based on democratic value, social
justice and fundamental human rights”. It enacts a categorical provision in
section 174(2) relating to appointment of Judges in the following terms :
“S. 174(2). The need for the judiciary to reflect
the racial and general composition
of South Africa
must be considered when judicial
officers are appointed”.
the cause of establishing a casteless society has
sufferred by the absence of a
corresponding provision in the Indian Constitution.
The most
important provision in the Constitution however, is Article 17 in the Fundamental Rights, Chapter,
abolishing untouchability. Untouchability is the effect of caste
discrimination. This provision is only attempting to abolish the effect without
touching the case. The most appropriate thing would have been to abolish caste
or discrimination on the ground of caste in all walks life, social, political
and economic. The minimum that should have been done was to accept Ambedkar’s
draft provision quoted earlier and enact it in the fundemental rights chapter.
ACHIEVEMENTS UNDER THE
CONSTITUTION
With no clear mandate to eradicate
caste the working of the Constitution has encountered serious difficulties even
in operating the enacted provisions. There is total lack of political will to
tackle the caste inequalities. Even the impartial and dispassionate approach
the Britishers provided could not be continued by the Indian rulers. Every
institution created under the Constitution suffered because of the well
entrenched caste prejudices. The upper castes cleverly manipulated and
consolidated their leadership to the
near exclusion of the backward castes, the Scheduled castes and the Schedule Tribes. education
and training received before indepedence came in very handy to maintain the
status quo. No genuine efforts were put
to remove caste distincions
THE LEGISLATURE :
(a) Uniform
civil code : The Legislature has failed to
bring about a uniform Civil Code so as to ensure one rule governing all castes
and communities in matters of succession, marriage, divorce, adoption and the
like. Article 44 which mandates such a provision has remained a dead letter. Not even the minimum requirements that all marriages, to be valid,
should be registered and should be between persons who have attained the age of
majority are not enacted till this day.
(b) Untouchabillity: Untouchability is practised in India in
several forms. Unapproachability, unseeability, unthinkability are all several
dimensions of untouchability. There can be intervals in practice of
untouchability all for the canvenience of the perpatrators. During lucid
intervals - lucid for the upper castes - out of necessity, an untouchable may
be approached. This operates at an individual level while the society continues
to treat them as untouchables always, as in the case of barbers. Then it may be
seasonal as in the case of women. To eradicate untouchability the
Legislature has passed two enactments,namely, the protection of Civil
Rights Act in 1955 and the Scheduled Castes and Scheduled Tribes (Prevention of Attoroditie) Act in1989. All
that these laws provide for is making to practice untoucha bility a punishable
offence . Abolition of untouchbility by implication should have been considered as having abolished the
cause of untouchability and therefore, the Legislature should have aimed at
removing the cause of untouchability
rather than confining itself to making
untouchability a punishable offence.Further the first legislation confines
only to the castes included in the Scheduled Castes list while the latter Act
has been extended only to the castes and tribes included in the list of
Scheduled Castes andScheduled Tribes.
It is a matterof common knowledge that untouchability is practised
not only against the Scheduled Castes but even against other lower castes.
Often it is a graded practice of untouchability practised by the upper
caste against the lower castes. Lower castes are subjected to social
disabilities of various kinds. No
provision has been enacted to remove these disabilities though quite a good
number of them result in practice of untouchability. For example denial of commensality in various religious maths in
India arranging for separate food for the Dwijas and others itself a form of untouchability. Dhobi
castes have been subjected to various forms of untouchability including
unseeability. Barber castes are also
subjected to untouchability. It is only
during intervals when a haircut is required that barbers are allowed to touch
for purposes of hair-cutting.
Otherwise they are treated as
untouchables. Not only they are victims
of untouchability they are even
considered to be unseeables and unthinkables also. In Chitradurga District of Karnataka they are better known
as “Neneyabaradavaru” in Kannada
meaning ‘ unthinkables’. These practices are not prohibited by the
Legislature so far. Further practice of
untouchability is not confined only to Hindu castes. Dalit Christians are equally condemned to untouchability. No steps have been taken by the Legislature
against practice of untouchability out-side the Hindu-fold. In the rural areas women are teated as
untouchables during menses. They are thrown out of the houses. They have to spend 3-5 days in open
fields. In some castes (ex:Golla)
pregnant women are thrown out at the time of delivery. They have to deliver the child and look
after themselves for over a month in open fields or makeshift palmleaf sheds to shed pollution. Nothing is done against this inhuman practice.
It is thus seen that even the only provision for eradication of
untouchability contained in Article 17 has not been fully implemented by the
Legislature translating it into effectice and all pervasive legislative
enactments to root-out untouchability lock, stock and barrel.
(c) Towards eradication of caste
discrimination : Article 15(1) prohibits
discrimination on grounds of religion and caste. The Preamble to the Constitution ordains to secure to all
citizens equality of status and promotion of fraternity. These provisions
readwith the Directive Principles of State policy mandate enactment of legislations to end the caste
discrimination. Existence of the caste
system and its continuation is a direct violation of Article 15, the Preamble
and the Directive Principles of the
State policy. Legislatures faied
atleast to prohibit succession and marriages within the caste. The Legislature kept the above
constitutional provisions as dead
letters in the Constitutions.
It is thus seen
that the Indian Parliament and the State Legislatures have found it difficult
to alter the status- quo make proper use of the constitutional provisions already enacted to
legislate provisions to remove caste
inequalities. Bold measures to
eradicate caste system altogether by suitable amendments to the Cconstitution
have not been attempted even.
THE EXECUTIVE;
Except
a token representation given to the Scheduled Castes and Scheduled Tribes, hear
and there, is no accomplishment worth
the name on the part of the Indian
Executive to eradicate caste discriminations.
Even the reservations for the backward castes was delayed by over forty
years. On the other hand the Indian bureacracy is firmly in the grip of the
upper castes and has beeen effectively used to
prevent the march of lower castes to end the widening gap between the upper castes and the lower castes.
The colossal failure of the
Executive, particularly in its failure
to implement the two laws to prohibit
untouchability is itself a standing
testimony to the complicity of the
Executive in perpetuating the
caste discriminations in general and untouchability in particular . The attitude of the Indian bureacracy is
well illustrated by the following account of P.N.Huxer, in
an interview to Granville Austin:
“Our Civil services.. are
first of all to themselves and
their
nuclear family... (and beyond this
to)
making secure the future
of our sons
and daughters... and, if
possible....
the members of our sub-caste,
caste,
community and region.”(16)
It
was no wonder that the Indian bureacracy made a determined effort to frustraate the implementation of the Mandal
Report and on its failure to drag its feet in implementing the policy. One should not forget that the bureacracy is the first beneficiary of
the existing caste inequalities and it feels threatened the moment reservations
are operated to give representation, appointments, promotions and positions to
the Scheduled Castes, Scheduled Tribes and there Backward Classes.
THE JUDICIARY
Indian Judiciary with its power of
judicial review is the most powerful judiciary in the world. With the removal
of Executive interference in appointment of Judges through its own judgments it
has also emerged as the most independent judiciary. It has also become the most
activist judiciary with the evolution of the public
Interest Litigation. However there is no perceptible contribution from it in
the matter of eradication of caste inequalities. On the other hand, by the
series of judgements it has handed down major efforts of the other organs of
the State to remove caste inequalities in the form of affirmative action have
suffered a major setback.
In
Champakam Dorairajan’s case it struck down a proportional distribution of
medical seats to all castes and communities (State of Madras v Champakam
Dorairajan AIR 1951 SC 226). This necessitated amendment of the Constitution
itself to incorporate Art. 15(4) to enable reservation of seats in educational
institutions in favour of Socially and educationally
Backward Classes. But in Balaji’s case reservation was cut down to 50% and on that
ground the court struck down the Mysore G.O. on reservation (Balaji M.R. V State of Mysore AIR 1963 SC 649). As a
result of it the backward castes and Tribes were deprived of
their legitimate share of educational opportunities and appointments for fifteen
years. In Devadasan’s case it was further cut down by restriciting the carry
forward rule to 3 years (Devadasan .T v
Union of India AIR 1964 SC 179). In Chakradhar Paswan’s case single
posts were eliminated from the purview of reservation (Chakradhar Paswan v
State of Bihar AIR 1988 SC 959). In Mandal case reversing an earlier ruling,
which had stood the test of time, reservation in promotions was
invalidated (Indra Sawhney v UOI AIR
1993 SC 477). This resulted in amendment of the Constitution again, by
incorporating Article 16 (4A). Now in Sabarwala Case reservation it self is
done away with if the quota is filled up
(R.K. Sabharwala and others v State of Punjab and other (1995) 2 SCC 745).
In some recent cases though Art. 16 (4A) provided for reservations in
promotions the Court has denied the right to seniority for SC and ST employees
getting promotion against reserved posts
(Ajit Singh Januja v State of
Punjab (1996) 2 SCC 715, Ajit Singh II v State of Punjab (1999) 7 SCC 209 and
M.G. Badappanavar v State of Karnataka (2001) 2 SCC). In Priti Srivatsava case
not only the reservation in super specialty courses was denied, even the
concessions given to SCs and STs in admissions to PG Medical Courses was
annulled as opposed to national interest and the interest of community or
society as a whole (Dr. Preeti Srivatsava v State of MP AIR 1999 SC 2894).
While the SCs
and STs enjoy reservation and get representation in the Legislature and the
Executive there is no such reservation and therefore representation to them is
denied in the Judiciary. Absence of SCs and STs in adequate number itself has
denied the Judiciary the benefit of their contribution about the ground
realities on caste discrimination and related issues. The Parliamentary
Committee on the Welfare of Scheduled Castes and Scheduled Tribes, noticed the
gross under representation of the Scheduled Castes and Scheduled Tribes in the
appointment of judges to the High Courts and Supreme Court. As per the data
collected by it the position as on May 1, 1998 was that for a population of
over 15% Scheduled Castes, there were only 15 High Court Judges, in a total
strength of 481 High Court Judges while the Scheduled Tribes had only 5 and 52%
belonging to the Backward Classes had only a token representation of 35. The
position in the Supreme Court was still worse. No representation was given to
these sections at all. Recording its strong disapproval against denial of
representation to SCs and STs and accusing practice of untouchability and
disobedience of the Constitution with regard to Articles 16(4) and 16(4A), the
Committee strongly recommended for taking immediate steps to amend Articles 217
and 124 of the Constitution to give adequate representation to the Scheduled
Castes and Scheduled Tribes in appointment of Judges to the High Court and
Supreme Court as also in the appointment of officers and staff in their
establishments (Kariya Munda, 2K: 14-15).
SHOULD U.N. DISCUSS
CASTE
In
the backdrop of the facts narrated above, it is seen that the State apparatus
in India is laboring under extreme difficulties to end caste discriminations.
Let alone making a dent, there is not even a beginning made in this matter.
Even the most inhuman practice of untouchability, that has affected a
population of 250 millions, resulting in human rights violation of the worst
kind is still to be redressed, abolition of it under the Fundamental Rights
chapter notwithstanding. World attention and u.n.
intervention has helped to end Apartheid and similar practices in other
Countries. In South Africa there was a bloodless and voluntary transformation
brought about. The Indian State apparatus will gain in strength and morale if
impartial United Nations agencies operate in these fields to end the barbaric
caste discriminations and root-out the 5000 years old social evil lock, stock
and barrel. Globalization has invited foreign goods, media, lawyers and other
services and industries. Why hesitate to globalize caste violation of human
rights. Let us agree for an international discussion at least before a U.N.
forum.
There
is also another reason why the matter requires United Nations attention. The
caste discrimination is not a phenomenon confined to India alone. The caste discrimination and
untouchability is also noticed in several other Countries like Japan, and Korea
(against Burakumin), Nigeria (Osu) and other West African nations. Further wherever the Indians have migrated,
they have carried with them their caste. Invariably they return to India to
pick a bride or bridegroom belonging to their respective castes. In those
foreign countries they have their caste associations. Even when they do not
directly mention the name of the caste, whatever associations they form are
confined to their respective castes. Therefore caste discriminations are bound
to prevail in such situations. Such communities are found in West Indies, South
Africa and several other African countries as also in United States, Canada and
England. International focus and United Nations intervention to end caste discrimination
would remedy the situation everywhere once and for all.
The expanded definition of Racial
Discrimination includes caste discrimination also as it is a discrimination
based on descent. Caste system is nothing but Apartheid in India. The Indian
bureaucracy appears to be dead set to oppose inclusion of caste discrimination
on the agenda of the World Conference against Racial Discrimination to be held
at Durban, South Africa from August 31, 2001 to September 7, 2001. The highest
policy making body of the country namely the Parliament of India has not
discussed this issue much less has it decided to oppose the inclusion of this
matter in the agenda. No decision appears to have been taken even by the
Council of Ministers to oppose the inclusion of this matter in the agenda. In
the circumstances it is obvious that it is the bureacracy, which has been the
major beneficiary of the caste inequalities in the country that is manipulating
the entire situation to oppose the enlistment of caste discrimination on the
agenda of the World Conference. If this opposition of the Indian bureaucracy is
allowed to succeed, the Hindu society will lose a golden opportunity to wipe
out this shame once and for all. “What is required is to purge it of the
doctrine of chaturvarna (which is
the) parent of the caste system and untouchability” as demanded by Ambedkar.
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REFERENCES
1. Ambedkar (1990) :Dr. Baba Saheb Ambedkar
Writings
and Speeches, Vol. 7 1990,
Govt
of Maharashtra.
2. Austin (1966) :The Indian Constitution : Corner stone
of
a Nation by Granville Austin,
Oxford
University Press, Bombay.
3. Austin (1999) :Working a Democratic Constitution, The
Indian
Experience by Granville Austin, Oxford.
4. Austin (1984) :Competing Equalities by
Marc
Galanter, Oxford, Delhi.
5. Gupta (2K) :Interrogating Caste by
Dipankar
Gupta Penguin Books.
6. Ketkar (1998) :History of Caste in India by
S.V.
Ketkar, 1998, LPB, Delhi.
7. Munda (2K) :Report of the Committee on the Welfare of
Scheduled Castes and Scheduled Tribes
(1999-2000)chairman Kariya Munda,
Second Report, Dept of
Justice, Lok Sabha
Secretariat, New Delhi.
8. Singh (1998) :People of India, Vol. IV : India’s
Communities
by K.S. Singh, 1998
Anthropological
Survey of India,
Oxford University Press, Delhi.
9. Seervai
(1993) :Constitutional Law
of India, Vol 2, 1993,
by H.M.Seervai, N.M. Tripathi Pvt Ltd,
Bombay.
10. Shankar (1997) :Report on the Socio-Economic Study of
the SCs and STs in Karnataka by
Dr.
Jogan Shankar, sponsored by the
Govt of Karnataka.
11. Wad (1984) :Caste and the Law in India by Justice
S.B. Wad, 1984. Documentation Centre for
Corporate & Business Policy Research, New Delhi.
12. Yadav (1988) :The Politics of Socio-Economic Inequality.
The Riddle of Untouchables in Belgaum
District (unpublished Ph D Thesis) by
Dr. Manohar Yadav. ISEC, Bangalore.
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