The official position
SOLI J. SORABJEE
I HAVE listened with great interest and attention to the statements and interventions and the observations of my esteemed colleague, Mr. Goonesekere. I shall briefly refer to the working paper later. Additionally, let me state that I realize the arduous job he undertook and although I do not agree with some of his conclusions, I attribute no motives to him.
In reaching any decision the first essential point is that it should be an informed decision, based on facts, a rational, detached and objective decision unswayed by passion or prejudice.
Let me state a few facts. For centuries, scheduled castes and scheduled tribes, that is the dalits, have suffered intense and extensive social and economic discrimination because of the caste system. They have been the victims of irrational prejudices. On account of this they have laboured under severe handicaps particularly in the field of education and public services.
In view of this position, the framers of the Indian Constitution incorporated in the Constitution itself provisions for affirmative action or compensatory discrimination as some people call it. This was done by providing for reservation of jobs for dalits in government employment and reservation of seats for them in educational institutions [see Articles 15(4) and 16(4)].
The Constitution of India provides for reservation of seats for scheduled castes and scheduled tribes (dalits) in the Lower House of Parliament and in the state legislatures (Article 330 and Article 332 respectively). When the Constitution was enacted in 1950, the reservations were to cease after 10 years. However, having regard to the conditions of scheduled castes and scheduled tribes, the Constitution has been amended from time to time, and the period of 10 years has been extended to 20 years, then to 30 years, then to 40 years and then to 50 years. At present it provides that the reservation will cease after 60 years, i.e., after 2010 (see 79th Amendment Act, 1999 in Article 334).
Article 338 provides for the constitution of a National Commission for the Scheduled Castes and Scheduled Tribes. Article 338(5)(b) makes it the duty of the commission to enquire into specific complaints with respect to deprivation of rights and safeguards of the dalits. 1294 complaints were received in the year 2000. After examining them, action has been taken by requiring competent authorities of the states to take cognizance under the penal acts. This has been done in a majority of cases. The Constitution further provides that the Union and every state government shall consult the commission on all major policy matters affecting scheduled castes and scheduled tribes.
With the increase in the quantum of reservations of jobs and seats there were court challenges. The Supreme Court of India ruled that as a general rule reservation should not exceed 50%. The court also held that whilst there can be reservation up to 50% in the case of initial recruitment there should be no reservation in respect of promotions.
In order to further protect and promote the fundamental rights of the dalits, the Constitution has been amended to get over and neutralize these Supreme Court judgements. An act of the state of Tamil Nadu providing for reservation up to 69% has been the subject of a constitutional amendment (see 76th Amendment Act, 1994). Article 16(4A) and (4B) have been added to the Constitution by way of amendments in order to get over the aforesaid judgements (see 77th Amendment Act, 1995 and 81st Amendment Act, 2000). These articles have escaped the attention of the author of the working paper.
Article 335 of the Constitution provides that in the making of appointments in public employment, ‘the claims of the members of the scheduled castes and the scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration.’ In order to further advance the rights and claims of the dalits there has been a constitutional amendment, viz. 82nd Amendment Act, 2000 which provides for ‘relaxation in qualifying marks in any examination or lowering the standards of evaluation’ for reservation in matters of promotion for dalits. This significant constitutional amendment finds no mention in the working paper.
There have been protests from other sections of the society and complaints of reverse discrimination. There is lot of heart-burning that a student who has secured 90% cannot get admission to a college whereas a dalit student who has secured much lower marks can get admission. The government’s view is that for centuries dalits have suffered worse and more severe discrimination and these measures are felt necessary at the present stage for their advancement. Is that apartheid? Is that racism or racial discrimination?
Untouchability, which is abhorrent, has been abolished by the Constitution. Its practice is made a penal offence and stringent punishment is provided, like mandatory minimum prison sentence and also forfeiture of property in some cases (see the Scheduled Castes and Scheduled Tribes – Prevention of Atrocities – Act, 1989). This act also contemplates formation of special courts for trial of such offences which are enumerated in the act. Many district headquarters have a separate special court to try the offences under the 1989 Act. Eighty exclusive special courts have been set up in various states. Other states have conferred upon the existing sessions courts the powers of special courts for trial of offences under the 1989 Act.
The rate of convictions is also growing. Of course, there could be and should be more convictions but remember that India’s criminal jurisprudence is based on the presumption of innocence and proof beyond reasonable doubt in criminal cases. Partial or ineffective enforcement cannot amount to impunity, unless there is a deliberate official policy of non-enforcement. The number of people convicted in 1996 was 1827. For the year 1997 it was 2017.
The Parliament has also passed another law, Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 whereby members of the disadvantaged sections of society are to be prevented from doing manual scavenging. The government has formulated a scheme for liberation and rehabilitation of scavengers and their dependents. A national Safai Karamcharis Finance and Development Corporation is being constituted to provide credit at concessional rates to ameliorate the plight of the scheduled castes/scheduled tribes. From 1997-98, 1998-99, 1999-2000, over Rs 600 million have been spent for this purpose.
It is a fact that discriminatory practices against the dalits do persist. An absence of effective enforcement of the legal provisions is one of the causes. Urgent action in this regard is necessary and the same is engaging attention of the authorities. But non-implementation of legal provisions is not confined to dalits. In a vast country like India beset with several problems, regrettably there is non- implementation in other cases also like labour legislation, legislation for protection of children and women, environmental laws and so on.
India has a free and independent media which also exposes and condemns discriminatory practices against dalits. Articles by dalit groups and those espousing their cause and which are severely critical of the government are widely published in several newspapers. There is no restriction or interference with the fundamental rights of the dalits to organize conferences and seminars in which their grievances are ventilated and demands are made for further measures and initiatives.
In fact, a major conference lasting for four days was organized in New Delhi from 1 to 4 March 2001 by the National Campaign on Dalit Human Rights India, which our distinguished member from Sri Lanka, Mr. Goonesekere, attended as an invitee of the organizers of the conference. My regret is that during his stay in Delhi for four days, he did not contact me at all. Had he done so, I would have gladly forwarded to him all relevant information. A week back there was a national seminar-cum-consultation on racism organized by the National Human Rights Commission at the National Law School of India University in which issues relating to discrimination against the dalits were freely and forcefully discussed.
The National Human Rights Commission, whose chairman is required to be a retired chief justice of the Supreme Court, is also empowered to look into complaints of discrimination and atrocities committed against the dalits. Many such complaints have been entertained. Moreover, wherever constitutional provisions and laws for the protection and promotion of the rights of the dalits are not enforced, courts in the land can be approached for enforcement of their rights and reliefs have been granted. These are some of the fora which look into and take cognizance of the conditions and the current position of dalits in government and in society.
Discrimination on the basis of caste cannot come within the concept of racism. The accepted definition of race is a group of people of common ancestry with distinguishing physical features and colour. Attention is invited to the passage appearing at page no. 361 of The New Encyclopedia Britannica, volume 15, 15th edition: ‘On balance, the evidence that the Indian caste system is racial in origin and that India is or was a racist society is unconvincing. Race and caste are mentioned separately in the Indian Constitution as prohibited grounds of discrimination. They are not considered to be interchangeable or synonymous. The principal architect of the Indian Constitution was Dr. Ambedkar, a dalit. He certainly knew the distinction between race and caste. If the concept of caste was included in race there was no reason to mention them separately.’
Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) defines the term ‘racial discrimination’ to 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 the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms. Thus the unmistakable characteristic of racism and a racist regime are segregation and exclusion of persons because of their race from high public offices, educational institutions and from public employment.
In India, dalits are not excluded from such offices and positions. The Indian Constitution provides for ample reservation for them in educational institutions and in public employment [see Article 15(4); Article 16(4)]. There is no country in the world which has such extensive and positive affirmative action provisions as India. Dalits have been appointed as judges of the Supreme Court and the High Court. The President of India, the highest post under the Constitution, is graced by a dalit. Ministers in the central and state cabinets have been and are dalits. The future Chief Justice of India in the year 2004/5 will be a dalit. Why is there no mention of these facts in the working paper?
It cannot be denied that more is certainly required to be done to improve the conditions of the dalits and to curb and eliminate the discriminatory practices against them. Age-old practices do take time before they are rooted out. But it would not be correct to overlook the measures adopted and the efforts made in that direction, and some improvements effected in the conditions of the dalits. As acknowledged by Mr. Goonesekere, given the continuing efforts by various bodies mentioned in para 23 of the working paper and to whom credit is given by him, there is bound to be substantial improvements. My plea is that we should take a balanced, not a one-sided view of the issue we are discussing.
* Statement at the 53rd Session of the Sub-Commission on the Promotion and Protection of Human Rights.