INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 4 ISSUE 2 ISSN

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1 POSITION OF DALITS IN INDIA AND CONSTITUTIONAL SAFEGUARDS *DR. SANJEEV KUMAR 1 Introduction To whatever extent a society may claim itself to the democratic; the truth is that the fundamental principle of democracy, namely equality and dignity of all citizens in the society, remains an ideal. However, democratic societies across the world are in effected with the inequalities among its members with respect to, especially, their race, class, creed, caste, religion and sex. Dalits have been the worst sufferers in the exploitative social order. In no sphere of life equality was accorded to them in interaction with superiors in the caste hierarchy. They worked on land but could not claim it, performed services essential to the maintenance of society but were ranked lowest in the traditional hierarchy, produced consumption materials and yet were rendered untouchables. Upper castes could touch the products made by dalits but they themselves were untouchables, the services rendered by lower castes are acceptable but they themselves were not acceptable. The grains they sew and reaped were consumed by upper castes to sustain their life and family but still dalits were treated as untouchables. The fact shows that the dalits are not born but are made and remain dalits so that the so-called upper castes can have the monopoly over resources of the society. Segregation and exploitation have been their fate. They are born in servitude and die in penury. The most deprived and down-trodden among the Dalit of Bihar are Musahars who are placed at the margin of subsistence surviving on rats, snails, snakes or anything else they can find and live in a kind of social thralldom sometime selling themselves and their wives and children to life- long servitude for paltry sums. Dalits were placed unfavorably in the ownership of productive assets as well as the distribution of the income. Post independent India has been witness to impressive achievements. Still India remains a poor country. Quality of life remains unchanged for the majority of the people. Power tends to be confined at the apex of the social hierarchy. Landholding and 1 LL.M. D.Phil Allahabad University 109

2 consumption statistics lend corroboration to the existence of discrimination against the bottom of the social hierarchy. India still itends to remain a hierarchical and exploitative social order. Inequities in its worst form survive and poverty remains entrenched. Position of Dalits During Ancient time- Caste as system of hierarchical submission operated as a mechanism of extraeconomic coercion of Dalit. During ancient period in the prevalent social arrangement dalits were subjected to status disabilities. The values internalized entailed upon dalits the solemn duty to serve the superiors in the caste hierarchy. The Dharmasutra- In the Dharmasutra dalits were called as a sudra. When the four Varna system was established for the first time, most of the people who were given the status of sudra were indigenous Indians who had been conquered by the Aryans. No one is certain about the proper meaning of the term sudra but as its origin, it is probably name given to an indigenous tribe that was conquered by the Aryans and then became a common term used to call subjected people in general. Sudras were strictly forbidden from participating in Vedic religious ceremonies of the Aryans. If sudra intentionally overhear the Veda chants, he shall have his ears filled with molten tin and dark-red pigment. It was forbidden in principle to eat anything cooked by a sudra or drink water from sudra s hand. These restrictions on food and drink were specially stricter among the Brahmanas, who were obliged to preserve the highest level of purity. Sudra in Medieval Period- In the medieval period (from the six and seventh centuries onwards), Hindu society (The four Varna based caste Hindu society), which accepted the sudra as member, continued to develop; but in this process the number of untouchables excluded from the four Varnas increased. Several aspect of the social discrimination reserve for the sudra in ancient Indian society were now transferred into the principles of untouchability. Xunzang and Al-Beruni, in the account of his travels to India in the seventh and eleventh century respectively also mentioned the four- Varna system. A twelfth- century India commentator on Hindu law included the essentially Vaisya occupations of cultivator, herder and merchant within the obligations of sudra. In India today it is normally 110

3 understood that the Vaisya is the Varna of commerce and that agriculture belongs to the sudra Varna. Under these circumstances, it was necessary for the orthodox Brahmanas to abandon their traditional notions about the sudra Varna. Brahmanas, who were being so pressurized to make concessions, at last compromised with realty by opening the Mahabharata, Ramayana and the Puranas, respected as holy Hindu scriptures, to sudra.that is to say, sudra were allowed to listen to the lessons taught by these scriptures from Brahmanas and attend ceremonies at which they could chant the holy mantras from themselves. Vedic age was also a time when the Brahmana secured the top position in society by virtue of their monopoly of the priesthood. Since then, the untouchables have been placed out side the framework of the Varna social order and have functioned to cement class relations in that society in that form of groups rank based on their level of purity (or impurity).most of the untouchables, or those inferiors equated with them, originated in tribal people carrying on hunting and gathering in the forests on the periphery of Aryan agrarian society. Some of these tribes embraced agrarian culture and were incorporated within the four Varnas. Social Change in Colonial Period- Indian society witnessed a major change during colonial period. Britishers came here with their social values. Their society was free of untouchability. They believed in the equality of human beings. Traditional caste based Indian society started to restructure itself. It was during the later part of the colonial period that many of new attitudes about untouchability crystallized among both upper caste and lower caste reform groups, and it was during this period that changes in the structure of society the economy and politics accumulated to generate on entirely new environment for social reform. However, some element of the colonial impact was widely diffused throughout India and greatly affected the structure of society. Industrial development and rapid urban expansion were undoubtedly some of the more conspicuous facts of change in the late colonial period. The rapid growth of the towns and new types of employment did introduce an element of anonymity for the low caste individual that migrated to the cities. 111

4 Role of the Indian Reformers in Nineteenth Century- By the 1930s there existed a variety of reform movements for the major reorganization of Indian society, however the new social insights for the proposed new nation did not appear exactly alike, nor could all the visionaries see eye to eye. One source of policy difference among the various reformers was diversity in their very own social origin and perspective which sometimes reinforced basic differences in philosophy. Early Indian social turmoil sprang from high caste Indians who focused first on changes relevant to those of their own status. For instance, the early heated debates by reformers about sati (the self immolation of a widow on her husband s funeral pyre) and widow remarriage were impertinent for the lowest castes, whose traditional cultures usually permitted and sometimes ever encouraged widow remarriage. The high degree of economic interdependence of caste society was compatible with a high degree of sub-culture variation and very low level of communication and empathy among castes that disturbed Indian social reform. It was not until 1895 that the relatively progressive social conference first introduced a resolution on the need of uplift the untouchables. By 1898, the Maharashtrian Prarthana Samaj, a socio-religious reform organization, established a small mission for the depressed castes, and in 1906 the depressed classes mission was set up by V.R. Sinde. However such efforts played an important role in educating a few higher caste Hindus regarding the problems the lower castes, yet these were on a very small scale. Significantly, this spurt of interest in the low castes in Western India had been generated in part by one of the earliest reformers from the lowest castes, Jyotiba Rao Phule, a member of low ranking gardener castes whose efforts on behalf of sudra and untouchable dated from 1850s. Phule s role in developing non brahman political agitation through his Satya Shodak Samaj was to established him as prominent figure in reform long after his death in Subsequently reformers from a variety of castes-men likes S.Nair, N.Chandarvarkar, and B.R. Ambedkar-also began to speak out against caste as an institution, but the voice were limited and most of the higher caste reformers continued to aim at gradual education of traditional restrictions on social relations among sub-groups of their own high castes. The Jat Pat Todak Mandal was set up in Lahore in 1928 with 112

5 a view to propagate the anti caste doctrine of the Arya Samaj, but when Dr. Ambedkar was invited in 1936 to address one of its conferences, the public resentment over his proposed speech on the annihilation of caste so rattled the Mandal that the address was cancelled. By 1932 the British announced their support for the policy. Determined to block, a move that was considered destructive of both Hindu Society and of Indian unity, Gandhi began fast-unto- death that ended in the Poona Pact when Dr. Ambedkar conceded the issue of separate electorates, allowing non untouchable voters to influence selection of untouchable representatives. Guaranteed proportional representation was retained, however Congress anti-untouchability campaigns gained further momentum. Separate Bill to ban untouchability and to permit temple entry were sponsored by the congress, a special magazine, Harijan, was devoted to the cause, and a services organization, the Harijan Sevak Sangh, was also established. When temple entry efforts lagged in 1933, Gandhiji forced open the doors of, at least the more renowned, temple with a 21-day fast that captured the attention of the Nation. Abolition of untouchability, once a politically untouchable issue itself, had become prime feature of the nationalist cause. Role of the Mahatma Gandhi and Dr. Ambedkar on untouchability- Both Mahatma Gandhi and Dr. Ambedkar were staunch nationalists and social reformers to the core. The basic framework of their thought was deep-rooted in their belief that religion is a necessary social fact, and a principal source of human liberation, dignity and equality. From this point differences arose between them. Hinduism was an ideal scheme for social and religious fulfillment in Ghandhi s view. Condemning untouchability, he thought it possible to remove untouchability and return to the Vedic conception of the Hinduism by appealing to the instincts of men. As a moralist, Gandhi look to society without untouchability. On the other hand, Dr. Ambedkar himself being from the untouchable community was closely aware of the humiliation and degrading conditions of untouchables both in rural and urban areas. He believed that participation in education and urban-industrial occupation would go a long way in equalizing the status of untouchables with that of the touchable. Dr. Ambedkar considered legal measures as powerful instrument for the upliftment of the depressed 113

6 classes and maintains that political power was the only effective method of advancing the interest of the depressed communities. Therefore, Dr. Ambedkar demanded separate electorate and political safeguards. Considering that these will serve a useful purpose in raising their social political and economic status Gandhi opposed separate electorates as he believed it would result in political seperation of the untouchables from the Hindus. The compromise to this Gandhi- Ambedakar debate on the issue of separate electorate was the present system of joint electorate with the reserved seats. While promoting education and legal protection of Scheduled Castes, Dr. Ambedakar displayed modern liberal national sense. But all those efforts were secondary to Dr. Ambedkar s criterion of liberation which was a religious one. He along with his followers embraced Buddhism with the belief that untouchability would vanish once they change their religion. Both Gandhi- Ambedkar link untouchabilities to the religious sphere as a main lever. They failed to specifically relate untouchability problem with the emerging socio economic reality, i.e., breakdown of feudal institution and spread colonial capitalists rule. Since Independence- Since Independence, the Government of India has adopted the policy of planned or direct social change in order to provide socio-economic justice to the weaker sections, especially Scheduled Castes and Scheduled Tribes. For ensuring all round development of Scheduled Castes and Scheduled Tribes and to protect them from all types of exploitation in the independent India, a number of safeguard have been provided in the Constitution of India. Art.14 guarantees equality before law and equal protection of law, Art. 15 of the Constitution Provides that no citizen shall be discriminated on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels, and place of public entertainments or (b) the use of wells, tanks, bathing ghats, road and place of public resorts maintained wholly or partly out of state funds or dedicated to the use of general public. Constitutional and Statutory Safeguards- Constitution of India wich is the low of the land itself contains certain provisions regarding the welfare of downtrodden castes and of course untouchability. To mentions, specially and specifically Art.17 declares that untouchability stands abolished under Art. 114

7 17 and its practice in form is forbidden and punishable under law. Traffic in human beings and forced labour is prohibited under Art.23 of the Indian Constitution. Art.46 casts a duty upon the State to protect the weaker sections of people specially members of SCs and STs in protecting and promoting the educational and economical interests of them and protecting them from social injustice and all forms of explotation. In order to give effect to these Constitutional provisions, the following enactment have been made: 1- The Untouchability(offences) Act, 1955, later amended and retitled 1976 as the Protection of Civil Rights Act, The Bonded Labour system (Abolition) Act, The Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, The Untouchability (Offences) Act, The Untouchability (Offences) Act, 1955, was enacted to give effect to the constitutional provision abolishing untouchability. The provision of this Act was not found to be stringent enough and it was felt that there was need to make the provisions stricter so that they could prove to be of greater deterrence. The Untouchability (Offences) Act,1955, was renamed in 1955 as the Protection of Civil Rights Act, 1955 which was amended in 1976 Amendment was also made in the earlier Act to make the offences of untouchability none compoundable. The provisions of punishments were also made stricter minimum penalties were provided for offences under the Act and a provision for enhanced punishment in the case of subsequent conviction was included. The Bonded Labour System (Abolition) Act,1976- The Act was enacted to give into effect the spirit of Art.23 of the Constitution of India which prohibits traffic in human being and begar. The provisions contained in Bonded labour System (Abolition) Act,1976 make it mandatory that the bonded labour system shall stand abolished and every bonded labour shall stand freed from the commencement of this Act. The object of this Act is to prevent the economic and political exploitation of the weaker section of the people. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, In order to check and deter crimes against SCs and STs by person belonging to other communities, the scheduled castes and scheduled tribes (Prevention of Atrocities) 115

8 Act, 1989 was brought into force from The Act defines certain category of offences against scheduled castes and scheduled tribes as Atrocities for the purpose of the Act. Comprehensive rules were also notified under the prevention of Atrocities Act,1955, which lay down among the other things, norms for relief and rehabilitation. The prevention of Atrocities Act prescribes punishment, which are higher than for corresponding offences under the Indian Penal Code. Commission for the Scheduled Castes, Scheduled Tribes and Backward Classes- For the purpose of the protecting the interests of the SCs and STs, Art. 338 provides for the setting up a commission for SCs and STs which was later renamed as National Commission for SCs and STs. By the 89 th Constitutional Amendment Act, 2003 the National Commission for SCs and National Commission for STs were provided under Art.338 and 338A. The President of India, under Art. 340 is empowered to appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes and difficulties which they face and to make recommendations to remove those difficulties and improve their condition. The Commission after investigating the matters referred to it present report to the President who is required to lay sown the report before the Houses o f Parliament. Programmes and Policies of the Government for the SC/SC- Various programmes and policies are being run by Governments for the welfare and upliftment of the members of SC/ST classes. Some are worth to quote; 1- Chhtrapati Shahuji Mharaj research and Training Institute- established. In 1998 in Lucknow it is meant to provided coaching for the competitive examinations. 2- SCs Ashram Vidyalaya- children of the Belo Poverty Line members of SC are being provided free education, clothes etc at the State expense. 3- Balika Shri Yojna- to give insurances cover to the girls, budgets provides for giving Rs.200 as insurance premium and the Rs. 800 saving certificate. 4- On 25 th June 2009 the U.P. Government has decided to give reservation for the members of SCs and STs class(respectively 27% and 2%) in Government tenders up to the pecuniary limit of Rs. 5 Lakh. 116

9 5- Rajive Ghandhi National Fellowship programme is run by the U.G.C. to provide financial assistance to the candidates of SCs and STs to pursue studies leading to M.Phil and Ph.D. full time in Science, Engg. And Techonology, Humanities and Social Sciences. Some other programmes are Uniform and Bycycle Anudaan Yojana, STs Aashram Vidyalaya, Kasturba Gandhi Balika Vidyalaya Yojana, Book programme etc. Constitutional Protection for the SC/ST It is irrefutable fact that Schedule Castes and Scheduled Tribes were oppressed and grossly mistreated by all sections of our society. Besides social, educational and economic disabilities the schedule castes were traditionally treated as untouchables. They are segregated in their social interaction with all other caste groups and remains isolated due to untouchability. The objective of the Indian constitution was to provide equal opportunity and adequate safeguards for them as they had been the worst victims in our society. The protection and safeguards for this section of the society is also needed for the promotion of their educational and economic interest and removing the social disabilities. Hence, this section of the society deserves special consideration. Criteria for Identification of Backwardness- Now the question is what is the meaning of backward class, Scheduled Castes and Scheduled Tribes? Who will identify and determine them? Scheduled Castes means such castes, races or tribes or part thereof or groups within such castes, races or tribes as are deemed under Art. 341 to be the Scheduled Castes for the purposes of this Constitution. Scheduled Tribes means such tribes or tribal communities or part thereof or groups within such tribe or tribal communities as are deemed under Art. 342 to be Scheduled Tribes for the purposes of this Constitution. The backward classes include Scheduled Tribes and Scheduled Castes also. The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts 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. The President may with respect to any State or Union Territory and where it is a State after consultation with the Governor thereof, by public notification specify the tribes or tribal communities or parts thereof or groups within tribes or tribal communities 117

10 which shall for the purposes of this constitution be deemed to be scheduled tribes in relation to that State or Union Territory as the case may be. Once the President notifies the Scheduled Castes or Scheduled Tribes, the change in the list can be made only by the Parliament by law. The President has passed number of orders specifying the Scheduled Castes, Scheduled Tribes and backward classes. Constitutional Amendments- first amendment Act, To achieve social status for backward classes an inroad was made by Champakam Dorairajan case in 1951, seats were reserved for backward classes in contravention of constitutional provisions. But the Government defended, by purported to promote social justice. The Apex court turned down the reservation made by state of Madras and held that reservation is unconstitutional in favour of backward classes. After that decision Art. 15(4) was enacted by First Amendment Act in the year (State is empowered to make special provision for Backward Classes and Scheduled Castes). Again this Art.15 (4) was treated as inroad to promote social justice to achieve one object of 16(4) i.e. equal opportunity of employment. We could say that Art. 16(4) and 15(4) are exception to Art. 15(1). In the case of Balaji v. State of Mysore AIR 1963 S.C.649, the Mysore Government issued an order for reserving seats in the Medical and Engineering Colleges in the State in which it classifies backward classes into more backward classes and backward classes and also the total reservation went up to 68% leaving 32% seats available to merit pool. Court held that classification was not justified under Art. 15(4). Court held that can caste can be a relevant factor not the sole factor for ascertaining whether a particular class is a backward class or not. However in Mandal case the court held that the classification can be done provided total reservation cannot exceed the 50%limit. In other case State of Kerala v. N.M. Thomas AIR 1976 SC 490 It was held that reservation backward classes may be made even outside the scope of Art. 16 (4). The government order granting two years exemption more to SCs and STs from passing the test for promotion in Railway department was held just and valid. 77 th Amendment Act, 1977 again in the year 1977 by way of 77 th Amendment Art. 16(4) was amended to protect the interests of weaker sections in promotion, particularly of Scheduled Castes and Scheduled Tribes. In fact, Art. 16(4) is meant for 118

11 equal opportunity in employment for all, Art.16(4A) is meant for promotion to SCs, STs. If we analyze Art.15(4) and Art.16(4A), they are only to promote social justice for weaker section. The decision of Champkam case and Indra Sawhney were modified by bringing the amendment. 93 rd Amendment Act, In the year 2005, Parliament passed 103 rd Bill by Amending Art. 15(5) for reservation to weaker sections and that Bill got assent of President as 93 rd Amendment Act in the year 2005, till date there is no notification. In the case of Ashok Kumar Thakur v U.O.I (5) SCALE 1 it was held that creamy layer principle is one of the parameter to identify backward classes. Therefore, as SCs amd STs and other backward classes are separate classes by themselves, creamy layer principle cannot be made applicable to SCs and STs. In this case the validity of Constitution (Ninety third Amendment) Act, 2005 was called in question by which class (5) to Art 15 has been aided. Which provides that State can make any special provision by law for the advancement of socially and educationally backward classes of citizen or SCs and STs in relation to admission to educational institution including private educational institutions, whether aided or unaided by the State. If we go through Art.15(4) and Art.15(5) and Art.16(4A) Amendment it would easily be gathered that, we are leaning in favour of social justice for weaker sections. By Amending the Constitution, a debate is triggered whether basic structure theory of constitution is destroyed or not? Result would be that we achieve concept of social justice through social engineering which is core of our constitution, which we have achieved by various judgments, legislation and constitutional amendments. Conclusion- The Constitution of India gave reservation a right to all the Backward Classes in 1950 and the process is still is going on. Reservation quotas, created with a view to giving share and dignified life to the members of the society who had been denial opportunities in the past, antagonized those sections of the society, which were enjoying the monopoly of power and resources.backwardness is great stigma on our National policy. The best way to uplift the members of backward classes is to give the best of education, abundance of resources financial aid and other encouragements. The reservation is required to be made in such a manner as not to be impairing the efficiency 119

12 of the administration. They should be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State. The need today is to remove educational and economic deprivation by proper planning which in turn will result in social mobility. Positive steps, both short and long term have to be taken to develop the marginalized, under-privileged groups. Whole populations of economically backward and under privileged section will be improved if we can judiciously devote our resources to solving problems of poverty, starvation, unemployment, under-nutrition, over population, primary education, disease and individual health care. The continued demand for a change in reservation policy both in Parliament and outside the Parliament is due to two reasons first, It is gross injustice against weaker section of forward caste and second that, merit and efficiency are in danger due to reservation. It is submitted against above stated two points that the peoples of weaker sections have faced a gross harassment in the society and it is continued till today. They are always having a social stigma in the name of their lower castes, but the people continued belonging to the upper castes have not faced such type of harassment and social stigma in their life. The people belonging to upper caste mete out torture upon the persons of lower castes, due to their mental tendency. Secondly, there is no danger from the reservation policy; the real danger is from those people who do not want to see the advancement of the weaker sections of the society. It is submitted that in my opinion there should be only initial reservation and subsequent reservation should be waived by the elite class of weaker sections. Some of the designated Backward Class has witnessed progress through the decades. The fact would repeat in future as well. Once a Backward Class has achieved some kind of progress, it would not require protection any more. The oppressed and downtrodden in these classes who are destined, aimed and meant to be the main beneficiaries of reservation still remain the sufferers. Often the powerful and articulate sections of the people within these classes may end up reaping the benefits of reservation so that the needy continue to suffer. The reservation benefits should be restricted just to one generation, subsequent generations should be made to compete with the general category if they want themselves to be progressive in real sense. 120