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A lazy sunday for me. While I was whiling away my time reading the paper I started wondering if there would ever be a time when the Government would apologise for the great wrongs committed against the poor agrarian people that has led to the naxal problem. Or perhaps the dalits.

The incident in Australia marks an important revelation in the progress of a welfare state. To understand that the state program must secure the rights of all is one of the most important facets of the democracy. But while this historic apology has taken place, the aborigines have already started planning their law suits asking to be compensated for it. An apology and further measures for protection was what they deserved but law suits are way too much. The irony of the law I presume.

Coming back to India, the Courts have made it clear that the idea of affirmative action under Articles 15(4) and 16(4) of the Constitution will be only to those communities that are ‘historically wronged‘. This is an interesting classification I must say and to add that the only form of benefit that comes to these communities is in the form of reservations. The greater issue at hand is the mistakes that the government is committing in furthering the interests of the minor rich and sacrificing the lives and means of livelihood of the majority poor. If there is an apology involved, it is in this area. With the series of property amendments to the Constitution, legislations regarding meager monetary compensation and not to forget the thousands of farmers who have killed themselves for the Government doesn’t give a damn about them; surely there is an apology to be given here.

Killing 80 (or more) people in Nandigram was no joke but a serious consequence of this mistake. The naxalite problem is also a related consequence. Perhaps we need a reformed government to re-consider the claims of such groups; because their penury was caused by government action itself and not by any extraneous circumstances. I always believe that society reforms and proceeds towards rationality with time but I think the time of us Indians is way far to come.

The National Rural Employment Guarantee Programme (NREGP), formulated consequential to the NREG Act, 2005, has no doubt, been of benefit to a vast number of families from rural India. This social-welfare legislation has proved instrumental in creating employment, albeit temporary, to those lacking adequate means of livelihood. The present context upon which I wish to comment, is one that exemplifies the connection, or rather the absence thereof, in the spheres of law and society. The exclusion of single women and widows from the ambit and benefit of the NREGP is no small matter.

The background to this comment is based on P. Sainath’s article in the Hindu dated May 22, 2007 and can be read here:  http://www.hindu.com/2007/05/22/stories/2007052200840900.htm 

The article, in essence, deals with case-studies of single and widowed women in Andhra Pradesh who have been refused employment under this Programme on the ground that they lacked a male partner joining for work. Many of the widows’ farmer-husbands committed suicide in light of the extremely miserable conditions for agrarian production which have been long prevalent in A.P (and many other parts of the country) now. Such reports have even received confirmation from officials in the Government. Digressing slightly, it can be stated there is a complete lack of awareness as to the fact that the widowed women of farmers are all the more in need of employment as a result of the deficient means of livelihood.

If one observes the reasons for refusal to provide employment to these women, it can be noted that such employment is contingent on the presence/ absence of a male partner at work. The fundamental assumption, therefore, is that productivity and work will be compromised if single/widowed women are employed without male workers to “compensate” such depletion in productivity. In short, only male workers can be trusted, so to say, to maintain standards of efficiency at work. Inherently discriminatory in nature, such tendencies do well to perpetuate the myth of the “able-bodied worker”. It would be truistic to say that the very purpose of the NREG Act is destroyed if such notions are encouraged. If employment were to be provided on such fallacious grounds based on efficiency, rooted in gender bias, we would only be promoting discrimination; not to mention the fact that livelihood of families run by women (no meagre number, that) would be thrown into (further?) economic backwardness.

The law in its implementation has to be conscious of ground realities in society. A social welfare legislation is absolutely redundant if in practice, it encourages such myths and discriminates on the basis of norms clearly unconstitutional. An understanding of social and gender equality is critical to the benefit of its subjects in society.

Taken from Human Rights Watch

India has systematically failed to uphold its international legal obligations to ensure the fundamental human rights of Dalits, or so-called untouchables, despite laws and policies against caste discrimination, the Center for Human Rights and Global Justice and Human Rights Watch said in a new report released today. More than 165 million Dalits in India are condemned to a lifetime of abuse simply because of their caste.
The 113-page report, “Hidden Apartheid: Caste Discrimination against India’s ‘Untouchables’,” was produced as a “shadow report” in response to India’s submission to the United Nations Committee on the Elimination of Racial Discrimination (CERD), which monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The committee will review India’s compliance with the convention during hearings in Geneva on February 23 and 26.

On December 27, 2006 Manmohan Singh became the first sitting Indian prime minister to openly acknowledge the parallel between the practice of “untouchability” and the crime of apartheid. Singh described “untouchability” as a “blot on humanity” adding that “even after 60 years of constitutional and legal protection and state support, there is still social discrimination against Dalits in many parts of our country.”

“Prime Minister Singh has rightly compared ‘untouchability’ to apartheid, and he should now turn his words into action to protect the rights of Dalits,” said Professor Smita Narula, faculty director of the Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law, and co-author of the report. “The Indian government can no longer deny its collusion in maintaining a system of entrenched social and economic segregation.”

Dalits endure segregation in housing, schools, and access to public services. They are denied access to land, forced to work in degrading conditions, and routinely abused at the hands of the police and upper-caste community members who enjoy the state’s protection. Entrenched discrimination violates Dalits’ rights to education, health, housing, property, freedom of religion, free choice of employment, and equal treatment before the law. Dalits also suffer routine violations of their right to life and security of person through state-sponsored or -sanctioned acts of violence, including torture.

Caste-motivated killings, rapes, and other abuses are a daily occurrence in India. Between 2001 and 2002 close to 58,000 cases were registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act – legislation that criminalizes particularly egregious abuses against Dalits and tribal community members. A 2005 government report states that a crime is committed against a Dalit every 20 minutes. Though staggering, these figures represent only a fraction of actual incidents since many Dalits do not register cases for fear of retaliation by the police and upper-caste individuals.

Both state and private actors commit these crimes with impunity. Even on the relatively rare occasions on which a case reaches court, the most likely outcome is acquittal. Indian government reports reveal that between 1999 and 2001 as many as 89 percent of trials involving offenses against Dalits resulted in acquittals.

A resolution passed by the European Parliament on February 1, 2007 found India’s efforts to enforce laws protecting Dalits to be “grossly inadequate,” adding that “atrocities, untouchability, illiteracy, [and] inequality of opportunity, continue to blight the lives of India’s Dalits.” The resolution called on the Indian government to engage with CERD in its efforts to end caste-based discrimination. Dalit leaders welcomed the resolution, but Indian officials dismissed it as lacking in “balance and perspective.”

“International scrutiny is growing and with it the condemnation of abuses resulting from the caste system and the government’s failure to protect Dalits,” said Brad Adams, Asia director at Human Rights Watch. “India needs to mobilize the entire government and make good on its paper commitments to end caste abuses. Otherwise, it risks pariah status for its homegrown brand of apartheid.”

Attempts by Dalits to defy the caste order, to demand their rights, or to lay claim to land that is legally theirs are consistently met with economic boycotts or retaliatory violence. For example, in Punjab on January 5, 2006 Dalit laborer and activist Bant Singh, seeking the prosecution of the people who gang-raped his daughter, was beaten so severely that both arms and one leg had to be amputated. On September 26, 2006 in Kherlanji village, Maharashtra, a Dalit family was killed by an upper-caste mob, after the mother and daughter were stripped, beaten and paraded through the village and the two brothers were brutally beaten. They were attacked because they refused to let upper-caste farmers take their land. After widespread protests at the police’s failure to arrest the perpetrators, some of those accused in the killing were finally arrested and police and medical officers who had failed to do their jobs were suspended from duty.

Exploitation of labor is at the very heart of the caste system. Dalits are forced to perform tasks deemed too “polluting” or degrading for non-Dalits to carry out. According to unofficial estimates, more than 1.3 million Dalits – mostly women – are employed as manual scavengers to clear human waste from dry pit latrines. In several cities, Dalits are lowered into manholes without protection to clear sewage blockages, resulting in more than 100 deaths each year from inhalation of toxic gases or from drowning in excrement. Dalits comprise the majority of agricultural, bonded, and child laborers in the country. Many survive on less than US$1 per day.

In January 2007 the UN Committee on the Elimination of Discrimination against Women concluded that Dalit women in India suffer from “deeply rooted structural discrimination.” “Hidden Apartheid” records the plight of Dalit women and the multiple forms of discrimination they face. Abuses documented in the report include sexual abuse by the police and upper-caste men, forced prostitution, and discrimination in employment and the payment of wages.

Dalit children face consistent hurdles in access to education. They are made to sit in the back of classrooms and endure verbal and physical harassment from teachers and students. The effect of such abuses is borne out by the low literacy and high drop-out rates for Dalits.

The Center for Human Rights and Global Justice and Human Rights Watch call on CERD to scrutinize the gap between India’s human rights commitments and the daily reality faced by Dalits. In particular, CERD should request that the Indian government:

  • Identify measures taken to ensure appropriate reforms to eliminate police abuses against Dalits and other marginalized communities;
  • Provide concrete plans to implement laws and government policies to protect Dalits, and Dalit women in particular, from physical and sexual violence;
  • Identify steps taken to eradicate caste-based segregation in residential areas and schools, and in access to public services; and,
  • Outline plans to ensure the effective eradication of exploitative labor arrangements and effective implementation of rehabilitation schemes for Dalit bonded and child laborers, manual scavengers, and for Dalit women forced into prostitution.

“International outrage over the treatment of Dalits is matched by growing national discontent,” Smita Narula said. “India can’t ignore the voices of 165 million citizens.”

“Hidden Apartheid” is based on in-depth investigations by CHRGJ, Human Rights Watch, Indian non-governmental organizations, and media sources. The pervasiveness of abuses against Dalits is corroborated by the reports of Indian governmental agencies, including the National Human Rights Commission, and the National Commission on Scheduled Castes and Scheduled Tribes. These and other sources were compiled, investigated, and analyzed under international law by NYU School of Law’s International Human Rights Clinic.

Background

The UN Committee on the Elimination of Racial Discrimination (CERD) is a body of independent experts responsible for monitoring states’ compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified by India in 1968. It guarantees rights of non-discrimination on the basis of “race, colour, descent, or national or ethnic origin.” In 1996 CERD concluded that the plight of Dalits falls squarely under the prohibition of descent-based discrimination. As a state party to ICERD, India is obligated to submit periodic reports detailing its implementation of rights guaranteed under the convention. During the review session CERD examines these reports and engages in constructive dialogue with the state party, addressing its concerns and offering recommendations. CERD uses supplementary information contained in non-governmental organization “shadow reports” to evaluate states’ reports. India’s report to CERD, eight years overdue, covers compliance with the convention from 1996 to 2006 yet does not contain a single mention of abuses against Dalits – abuses that India’s own governmental agencies have documented and verified.