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Caste, Religion, and Nationalism in India Human Rights Law

by Luke Minton | Summer 2017

Despite electing a Dalit as the President of India, the largely ceremonial office does little to mend the broken civil rights protections for the populations of the nation that are most vulnerable. With discrimination originating as far back as the allocation of wide jurisdiction to the president under the Indian Constitution, the majority party's rise has put the civil rights protections at risk. The new president can aid in alleviating the religious violence being perpetrated in the nation by passing clearer statutory frameworks for prosecuting human rights offenses, placing legal pressure on the Bharatiya Janata Party for its stance on religious militant groups, increasing mandated sentence requirements for hate crimes, and repealing Constitutional Order 19.

4. Ibid. art. 330.

9. Soosai Etc vs. Union Of India And Others, 1986 A.I.R. 733.

18. Prevention of Atrocities Act §21(2)(iii).

19. §§ 295-298, Indian Penal Code, No. 45 of 1890.

Ram Nath Kovind appears humble in front of a crowd of supporters who greet him as India’s President-Elect. A representative of the Dalit community, the historically oppressed group once known as Untouchables, Kovind vowed on July 20—the night of his election—to “represent all such Kovinds toiling away to make a living,” using the example of his family’s hardships to represent the status of the larger Dalit community.[1] His empowering words, and the accession of a Dalit to the largely ceremonial but exceptionally prestigious post, paint a romanticized picture of social progress in India that bely the incomplete mosaic of civil rights protections for the nation’s most vulnerable populations.

India’s current majority party, the Bharatiya Janata Party (BJP), of which Kovind is a member, has taken an active role in promoting Hindu conservatism, or hinduvta, a social ideology that seeks to integrate Indian’s national culture with strictly Hindu values. These efforts in accordance with the BJP’s recent electoral triumphs have created numerous controversial policy positions during the administration of Prime Minister Narenda Modi. Even if a Dalit has been elected President of India, for them and other religious minorities, most notably Muslims, secular reform efforts have continued to stall—and in some cases, regress.  Previous attempts to legislate civil protections for these groups, such as “The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act of 1989,”[2] have proven ineffective due to half-hearted execution. However, the roots of civil rights vulnerability in India lie deeper than this. Rather than bureaucratic inertia opposing pressing social reform, fundamental aspects of the Indian legal system give insufficient protection of civil rights from political caprices. By giving the government the broad power to determine which groups merit protection, some groups, especially the intersection of caste and religious minorities, are negatively impacted.

 

LEGISLATIVE ORIGINS

This dangerous power manifests itself in legal documents as significant as the Indian Constitution, a document which expressly notes its importance of securing “equality of status and of opportunity” to “all of its citizens.”[3] In an attempt to curb historical discrimination based on class-based and ethnic grounds, the original 1949 Constitution delineated two categories for specific consideration: Scheduled Castes (SC) and Scheduled Tribes (ST); the former to account for Dalit populations, the latter for rural ethnic minorities.[4] Part XVI of the current Constitution of India discusses special provisions affecting these groups, such as a reserved proportion of seats in the lower house of India’s Parliament, the Lok Sabha. However, the constitution gives the government broad latitude in delineating what exactly qualifies as a Scheduled Caste. Significantly, the President has the ability to “specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.”[5] Not long after the ratification of the Indian Constitution, this broad degree of unilateral authority was exercised to its full extent, most strikingly when the Presidency, in Constitutional Order 19 of 1950, declared that “no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.”[6] The consequences of keeping the constitutional language abstract and providing sweeping discretion to the presidency in determining Scheduled Caste status have led to repercussions that persist today.

The promulgation of this religious requirement for Scheduled Caste designation represents one of the most explicit legal failures in Indian civil rights. But the BJP continues to advocate for a religious litmus test to determine Scheduled Caste status. Using the argument that caste is an element of the Hindu religion and hence inextricable from its religious origins, conservative forces in India, such as the BJP, have opposed a repeal of Constitutional Order 19—or the passage of any legislation that would extend Scheduled Caste designation to Dalit Muslims or Christians. The BJP viewpoint on the religious requirement was publically advocated by none other than President Kovind himself, acting as a BJP spokesman in the wake of the release of the Ranganath Mishra Commission.[7] The Commission, which recommended the expansion of Scheduled Caste designation to include Dalit practitioners of non-Hindu faiths, argued that current institutional supports were insufficient to ensure sufficient social and economic protection for Muslim and Christian Dalits, the intersection of two of India’s most vulnerable populations.[8] Though, as Kovind noted in his defense of the BJP platform, political representation of religious minorities has been gradually legislated into existence through the creation of the Other Backward Classes (OBCs) designation. As is the case for the Scheduled Castes and the Scheduled Tribes, OBCs are reserved a proportion of seats in the Lok Sabha. Because Christians and Muslims comprise a significant fraction of the OBC population, the seat reservation has afforded a degree of political representation for such people. The availability of political representation for Christian and Muslim Dalits through the OBC distinction forms the main foundation for Kovind’s argument supporting the status quo, in which Christian and Muslim Dalits are denied Scheduled Caste classification. However, because Dalits face a number of social and economic challenges, the mere indirect reservation of parliament seats through the OBC designation is not sufficient to solve all the problems threatening Muslim and Christian Dalits. 

Since the discrimination faced by Dalits under the caste system took on a variety of forms and involved many facets of life, Scheduled Caste civil rights legislation deals with the widespread discrimination Dalit people face in multiple realms of society. Therefore, the protection of civil rights and economic opportunities for Dalits of non-Hindu faiths must be emphasized as strongly as political representation; for economic strife is a critical underpinning in the life of a non-Hindu Dalit as well. For example, the historical name of the Dalits, Untouchables, denotes the spiritual uncleanliness Dalits were said to possess. This abstract principle translated directly into social and economic conditions for Dalits. Because of their perceived impurity, Dalits were restricted to working in the most demeaning and lowest-paying industries, such as trash collection. Consequently, poverty in Dalit communities is markedly higher. These unfavorable socio-economic conditions are inextricably linked with the discrimination Dalits face and are irrespective of their personal religious convictions. Reserved political representation of religious minorities does not address the fact that a large subset of the minority faces additional challenges due to social class which are currently not covered under existing protections for SC members. 

The assertion that non-Hindu Dalits face the same discriminatory challenges as their Hindu peers without any of the political protections is well supported, both directly and indirectly, in multiple facets of Indian law. The “Prevention of Atrocities Act”, which contains the statutory foundation for non-discrimination protections of Scheduled Caste members, noted that economic opportunity, or the lack thereof, played as important a role in defining the Dalit condition as did any religious factor. In fact, discriminatory actions or atrocities committed against Dalits often follow periods of Dalit economic success, suggesting an anxiety that motivated by a fear that Dalits will achieve greater prosperity at the expense of the historically more privileged classes. The prevalence of atrocities against Dalits in areas where they are currently progressing economically reveals the significance of socio-economic, rather than merely religious, factors in informing Dalit civil rights protection laws.

 

JUDICIAL CHALLENGES

The judicial record also provides instances of the continuing challenges faced by people of Dalit status once they convert from Hinduism. Soosai Etc vs Union Of India And Others noted that the negative consequences of belonging to a lower caste can persist after religious conversion.[9] The petitioner, a former Hindu Dalit member of the Adi-Dravida caste who converted to Christianity, sued following the loss of his welfare pension which occurred after his conversion. Alleging that Constitutional Order 19 violated Article 15 of the Indian Constitution on the grounds of religious discrimination, the petitioner also contended that his right to equal protection under Article 14 and his right to the free exercise of religion under Article 25 were infringed by the government’s actions.[10] The Supreme Court of India denied his petition, noting “it is not sufficient to show that the same caste continues after conversion. It is necessary to establish further that the disabilities and handicaps suffered from such caste membership in the social order of its origin, Hinduism, continue in their oppressive severity in the new environment of a different religions community.”[11] The Court placed the burden of proof squarely on the petitioner to demonstrate that the degree of disadvantage faced as a Christian Dalit was comparable to that faced as a Hindu Dalit. Since the petitioner failed to decisively prove this in its eyes, the Supreme Court declared that a greater study of the effects of conversion in Dalit populations would be necessary in order to conclusively determine consequences in terms of discriminatory treatment.

Such a study was in fact carried out—specifically, in the form of the Ranganath Mishra Commission, which cited Soosai as an example of judicial precedent that recognized, albeit indirectly, non-religious aspects of Dalit discrimination. Citing Indira Sawhney Vs. Union of India Suppl., a case that stated that the concept of caste extended beyond Hinduism, the Ranganath Mishra Commission gathered the data and empirical evidence regarding converted Dalits that the courts lacked.[12] As stated before, the conclusions of the Commission recommended the extension of Scheduled Caste protection to non-Hindu Dalits on the ground that the discrimination faced after conversion from Hinduism was sufficiently comparable to the discrimination faced before to merit similar protection.

CURRENT STATUS AND DEVELOPMENTS

As long as religious requirements for discrimination protection such as those of Constitutional Order 19 persist in Indian law, India’s vulnerable populations will never fully achieve equitable treatment, nor will the nation be able to live up to its promise as a secular country. Unfortunately, the Hindu conservatism which dominates BJP ideology is unlikely to accommodate these changes. An example of the strong influence of Hindu conservatism in the current administration is the ban on cattle slaughter in the “Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules of 2017.”[13] For low-income Muslims (including Muslim Dalits), to whom the food taboo on cow does not apply, the cattle industry is both an important facet of the economy as well as an inexpensive source of necessary protein. In July 2017, the Indian Supreme Court suspended the cattle slaughter ban based on economic and religious liberty concerns.[14] Despite the challenges still standing in the way of full equitable treatment, the Supreme Court decision reveals a continued awareness that religious tensions still play a major role in the nominally non-sectarian country.

In addition to the attempts at new legislation, the intense political atmosphere created by the BJP’s rise to power has led to troubling developments in the implementation of current law. India’s law explicitly bans discrimination on the basis of religion in Article 15 of the Constitution, providing a clear means to challenge prejudicial laws. This article was also used as the constitutional basis to suspend the cattle ban.[15] However, a robust protection of civil rights must not merely be restricted to the prevention of discriminatory legislation: it must also both guarantee the concrete protection of those rights in practice and provide legal recourse for those whose rights are violated. With respect to the current situation in India, the latter two of these elements are fragmentary or absent. Since the BJP has taken power in India, there has been a significant uptick in Hindu vigilante killings, specifically targeting Muslims involved in the cattle trade.[16] BJP authorities have, as of yet, been unsuccessful in stemming the tide of violence, leading to a sentiment among some religious minorities that substantive religious protection is not among the administration’s highest priorities. Though some BJP officials have been tried for their role in religious violence, they are acquitted in overwhelming proportions.[17] In addition to the long-term problems facing Indian human rights law, these current issues warrant specific attention.  

The absence of legal remedies for the violation of religious civil rights in India is a major concern that is made even more pressing by recent developments. The “Prevention of Atrocities Act”, the most significant Indian human rights legislation, focuses almost entirely on the prevention of offenses and only cursorily mentions the rehabilitation necessitated by a violation in practice.[18] Furthermore, the “Prevention of Atrocities Act” only concerns Scheduled Caste-specific human rights and does not provide comprehensive religious protections. The incompleteness of rehabilitative measures in The Indian Penal Code only devotes four of its 511 sections to religious offenses. Additionally, the offenses mentioned in these section, such as religious hate speech and desecration of holy sites, are misdemeanors and low-level felonies, the most serious of which carrying a statutory maximum sentence of three years.[19] These statutes do not cover the full ambit of religious issues in India. They also do not address the incidences of religious violence that are a major issue in Indian human rights, especially when considering current events. As it stands, Indian human rights laws need major reform to incorporate credible rehabilitation measures.

 

CONCLUSION

The present status of human rights law in India presents a number of challenges, but it also presents opportunities. In the short-term, the recent religious violence is the most pressing issue. This problem can be tackled through a variety of measures: passing clearer statutory frameworks for prosecuting human rights offenses as well as placing continued legal pressure on the BJP for its stance on religious militant groups would both be concrete steps in addressing the situation, but also may be difficult to implement in a heavily charged political environment. Another solution would be the passage of statutorily mandated sentence enhancements for religious or caste motivated hate crimes—this would address the dearth of rehabilitation measures and would remove a level of interpretative ambiguity when prosecuting these cases. Moreover, unlike a direct legal assault on the BJP or its handling of the vigilante situation, it would be less likely to be perceived as an antagonistic move by the ruling party. In the long-term, the structural foundations limiting the substantive equality of India’s most vulnerable groups need to be addressed. Constitutional amendments clarifying the methodology of selecting Scheduled Castes are a necessary aspect of this, as is the repeal of Constitutional Order 19. Even though these measures are likely to be highly controversial and depend on mercurial political forces, which is why they may not come into effect soon. Nonetheless, the most complex challenge for the Indian state will be finding a way to use the law to keep the government’s protection of religious and caste rights—both in its approach to legislation and its prosecution of offenses—independent from the party in control. Though much work remains to be done on this front, the Supreme Court’s suspension of the cattle slaughter ban is a comforting sign that these structures, though incomplete, are indeed present. India may have not yet achieved full equality for all of its citizens, but with a concerted focus on human rights issues, it will get closer.

REFERENCES

[1] “President Ram Nath Kovind: Gentleman Politician, Lawyer, Dalit Rights Champion, Dog lover,” Hindustan Times, July 25, 2017, http://www.hindustantimes.com/india-news/president-ram-nath-kovind-gentleman-politician-lawyer-dalit-rights-champion-dog-lover/story-y7SDuSwMpjBMKT17P6rukM.html.

[2] The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, No. 33, Acts of Parliament, 1989 [hereinafter, Prevention of Atrocities Act].

[3] India Consti. pmbl.

[4] Ibid. art. 330.

[5] Ibid. art. 341, cl. 1.

[6] §2, C.O., No. 19 of 1950.

[7] Liz Mathew, “Ram Nath Kovind Had Opposed SC Status for Dalit Christians, Muslims,” The Indian Express, June 20, 2017, http://indianexpress.com/article/india/ram-nath-kovind-had-opposed-sc-status-for-dalit-christians-muslims-4712492/

[8] Ibid.

[9] Soosai Etc vs. Union Of India And Others, 1986 A.I.R. 733.

[10] Ibid.

[11] Ibid.

[12] Ministry of Minority Affairs, Report of the National Commission for Religious and Linguistic Minorities, 59 (2007). 

[13] Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, Ministry of Environment, Forest, and Climate Change, Gaz, India, Extraordinary 396, May 23, 2017.

[14] “India’s Supreme Court Suspends Ban on Sale of Cows for Slaughter,” New York Times, July 11, 2017, https://www.nytimes.com/2017/07/11/world/asia/india-cows-slaughter-beef-leather-hindu-supreme-court-ban.html.

[15] India art. 15.

[16] “India: Events of 2016,” Human Rights Watch, 2017, https://www.hrw.org/world-report/2017/country-chapters/india#4a6121.

[17] Ibid.

[18] Prevention of Atrocities Act §21(2)(iii).

[19] §§ 295-298, Indian Penal Code, No. 45 of 1890.

1. “President Ram Nath Kovind: Gentleman Politician, Lawyer, Dalit Rights Champion, Dog lover,” Hindustan Times, July 25, 2017, http://www.hindustantimes.com/india-news/president-ram-nath-kovind-gentleman-politician-lawyer-dalit-rights-champion-dog-lover/story-y7SDuSwMpjBMKT17P6rukM.html.

2. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, No. 33, Acts of Parliament, 1989 [hereinafter, Prevention of Atrocities Act].

3. India Consti. pmbl.

5. Ibid. art. 341, cl. 1.

6. §2, C.O., No. 19 of 1950.

7. Liz Mathew, “Ram Nath Kovind Had Opposed SC Status for Dalit Christians, Muslims,” The Indian Express, June 20, 2017, http://indianexpress.com/article/india/ram-nath-kovind-had-opposed-sc-status-for-dalit-christians-muslims-4712492/

8. Ibid.

10. Ibid.

11. Ibid.

12. Ministry of Minority Affairs, Report of the National Commission for Religious and Linguistic Minorities, 59 (2007). 

13. Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, Ministry of Environment, Forest, and Climate Change, Gaz, India, Extraordinary 396, May 23, 2017.

14. “India’s Supreme Court Suspends Ban on Sale of Cows for Slaughter,” New York Times, July 11, 2017, https://www.nytimes.com/2017/07/11/world/asia/india-cows-slaughter-beef-leather-hindu-supreme-court-ban.html.

15. India art. 15.

16. “India: Events of 2016,” Human Rights Watch, 2017, https://www.hrw.org/world-report/2017/country-chapters/india#4a6121.

17. Ibid.