India has failed in its duty to eliminate caste discrimination and ensure the full enjoyment of the fundamental rights and equality before the law of Dalits guaranteed by Article 5. This next section closely details the particular rights violations suffered by Dalits. As a general point, it is important to highlight that the Protection of Civil Rights Act, 1955, and the Prevention of Atrocities Act, 1989 (two of the most important pieces of legislation for the protection of Dalits), have been rendered increasingly ineffective in their ability to protect Dalits from fundamental rights violations because of the failure of state governments to properly implement the acts.152 State governments have made no serious efforts to identify areas where the practice of untouchability is prevalent, have done very little to make public and known the provisions of the acts, and have failed to periodically survey the acts effectiveness.153 Moreover, the NHRC has concluded that there is virtually no monitoring of the acts implementation at any level.154 Political leaders have also played a significant role in hindering the implementation of the Prevention of Atrocities Act, 1989.155
Dalits are frequently the victims of discriminatory treatment in the administration of justice. Prosecutors and judges fail to vigorously and faithfully pursue complaints brought by Dalits, which is evidenced by the high rate of acquittals in such cases. Dalit women suffer particularly as a result of the deficient administration of justicerape cases are not prosecuted in good faith and Dalit women suffer both caste and gender discrimination in the courtrooms. Moreover, the number of Dalits appointed to judicial office remains low. Instances of untouchability and discrimination against Dalit judges by their non-Dalit peers have also been reported.
The failure of police to register or properly register crimes against Dalits (see Section V(A)(1)(a)(vi)) is a key way in which Dalits right to equal treatment before organs administering justice is compromised at the outset.
One of the principal ways in which the right of Dalits to equal treatment before organs administering justice is being denied is through the poor quality of prosecutions under the Protection of Civil Rights Act and Prevention of Atrocities Act, 1989. The Government of India has itself noted this failure in its 2001-2002 Annual Report on the Prevention of Atrocities Act, 1989, which states that in 2002, only 2.31 percent of cases brought under the Prevention of Atrocities Act, 1989 had resulted in convictions.156 The low rate of convictions, compared against the high number of atrocities reported against Dalits, speaks to the caste bias of prosecutors, as well as other organs of justice, including the judiciary.
Dalit women, occupying the bottom of both the caste and gender hierarchies, are both uniquely susceptible to violence and particularly vulnerable to the infringements of their right to equal treatment before organs administering justice. Cases documented by the National Commission for Women, Human Rights Watch, local and national womens rights organizations, and the press, overwhelmingly demonstrate a systemic pattern of impunity in attacks on Dalit women.157 Dalit women are more likely to suffer violence and especially sexual violence, and are least likely to get redress in the courts. They are, in a sense, doubly victimized - first at the hands of their attackers, and then at the hands of judicial system that fails to offer them protection and redress.
A Dalit woman who is a survivor of rape will face significant obstacles in bringing her case to the attention of the police, and, in turn, the courts. She will likely face ostracism from her community and family, and she will have difficulty gaining access to the justice system.158 Further, even if a woman is able to surmount all these obstacles and convince the police to lodge a FIR, she will face new roadblocks at every step of the way. A Dalit woman is likely to be confronted with any of the following impediments to the successful prosecution of her case: unsympathetic doctors159 and police officers, difficulty in finding witnesses who are willing to risk their own safety by testifying, police officers and prosecutors who are bribed or pressured by the (usually more powerful) attackers, as well as having her case misfiled under more lenient sections of the Indian Penal Code or not being simultaneously filed under the Prevention of Atrocities Act, 1989.160 The combined effect of these hurdles is such that, even if her case is properly investigated, a Dalit woman will likely find that her attackers have been granted impunity.161
In fact, as statistics from the National Crime Records Bureau demonstrate, conviction in rape cases is not only extremely rare, but becoming rarer - out of the total rape cases in which trials were completed between 1990-1993, in 1990 41.5 percent ended in conviction; the figure dropped to 34.2 percent in 1991 and to 33.8 percent in 1993.162 The failings of the prosecutorial arm are further evident in the disproportionately large backlog of rape cases (on average, 80 percent of rape cases remained pending for trial in 1994163) and the comparatively low levels of conviction for the crime of rape as compared with less serious crimes of burglary and theft.164
Certain states have provided some compensation to Dalit rape victims. As per the 2002-2003 Annual Report on the Prevention of Atrocities Act, 1989, during the year 2002-2003, the state government of Madhya Pradesh incurred an expenditure of Rs. 28.5 lakhs [US$63,808] for providing relief to rape victims165, while the state of Maharashtra provided financial assistance in the amount of Rs. 19.68 lakhs [US$44,061].166
It should be noted that the prosecutorial failure to investigate, file, and pursue cases involving rape against Dalit women has an injurious effect not just on the individual woman harmed in each instance of sexual violence, but more broadly on women and Dalit communities in general - prosecutorial failures empower potential perpetrators by signaling that crimes against Dalit women will be rewarded with impunity and also further disempowers marginalized communities by eroding their trust in the judiciary. Finally, prosecutorial failures in the context of cases involving rape against Dalit women encourage the use of rape as a tool to punish and silence Dalit communities.167
The prevalence of caste and gender bias among Indias judges is another factor which imperils the right of Dalits to equal treatment before organs administering justice under Article 5 of ICERD. Such bias has resulted in improperly conducted trials, including acquittals that blatantly ignore evidence and witness testimony and entrench the system of impunity that greets perpetrators of violence against Dalits.
Dalits right to equal treatment before the courts is further imperiled on account of the fact that Dalits themselves are poorly represented in the judiciary. Statistics presented in the Fourth Report of the National Commission for Scheduled Castes and Schedules Tribes for the years 1996-97 reveal the magnitude of the problem. For example, while Dalits comprise roughly 16 percent of the population, in 1982, only four out of the 325 judges in all High Courts in India were Dalits (i.e. 1.23 percent of the judiciary). By 1993 the situation was only marginally better, with 13 out of 547 judges at the all India level being Dalits (i.e. 2.38 percent).173 In 2002 the Supreme Court had one Dalit out of 26 judges, while the High Courts had 25 Dalits out of 625 positions.174 Also illustrative of the lack of Dalit and lower-caste representation in the judiciary is the fact that Brahmins, who comprise just 5 to 9 percent of India's 1 billion people, fill 78 percent of India's judicial posts.175
Caste and gender discrimination do not cease once a Dalit is appointed to a judicial position, as discriminatory attitudes prevail among judges themselves. The depth of anti-Dalit sentiment in the judiciary is particularly well illustrated by an incident that took place in July 1998 in the state of Uttar Pradesh, where, as the Times of India reports, an Allahabad High Court Judge had his chamber purified with Ganga jal (water from the River Ganges) because it had earlier been occupied by a Dalit judge.176
The failures of implementing Article 5 of ICERD with respect to caste are further evinced by the disproportionately large numbers of pending cases involving offenses and atrocities against Dalits. The Sixth and Seventh Reports of the National Commission for Scheduled Castes and Scheduled Tribes reveal, respectively, that less than a sixth of such cases that reached trial stage in 1999-2000 were actually adjudicated, and that only 11 percent of the cases were disposed of during 2001-2002.177 The large number of cases concerning Dalits that are still pending before the courts suggests non-compliance with the Convention; the Committee has made plain that guarantee[ing] the victim a court judgment within a reasonable period is something that States parties should ensure [in their] system of justice.178
The failures of implementing Article 5 of ICERD with respect to caste are also evinced by the disproportionately high rate of acquittals in cases involving offences and atrocities against Dalits. The Third and Sixth Reports of the National Commission for Scheduled Castes and Scheduled Tribes reveal, respectively, that in 1996, the conviction rate in these cases was 15 percent,179 while the acquittal rate was 85 percent, and that in 1999-2000 and 2000-2001, as much as 89 percent of cases resulted in acquittals.180 The Commission additionally found that only 11 percent of cases were disposed of during the year. Of those, 51 percent resulted in convictions. The small percentage of cases that actually reached the trial stage is a cause for concern.181 Additionally, the acquittal rates were still alarming in the states of Assam, Gujarat, Kerala, Maharashtra, Orissa, Rajasthan, Uttaranchal, Karnataka, and Haryana, where acquittal rates were as high as 97 percent.182 According to the Governments 2001-2002 Annual Report on the Prevention of Atrocities Act, 1989 only 2.3 percent of overall cases brought under the Prevention of Atrocities Act, 1989 resulted in convictions in 2002.183 Recent statistics released by the Home Ministry in December 2006 reveal that the pattern of acquittals continues: of the 833 cases registered under the Act in the state of Maharashtra in 2005, only 6.3 percent ended in conviction. In 2004 689 cases were registered in the state, with only 4.8 percent ending in convictions. In Gujarat, in the 1,301 cases registered in 2005, the conviction rate was a poor 3.8 percent. The state of Uttar Pradesh fared better: of the 4,369 cases registered last year, nearly half the offenders were convicted.184
Indias obligation to ensure a persons right to security and to protect against violence or bodily harm applies to State and non-State actors. The nature and extent of abuse against Dalits by the police has been set out above in Section V(A)(1)(a). This section focuses on widespread violence against Dalits, including sexual violence against Dalit women, and the failure of Indian government to protect Dalits and ensure their security of person.
For Dalits, the right to personal security has been seriously undermined because of rampant attacks and violence committed against them.185 Media, NGO, and government reports reveal that the police have systematically failed to protect Dalit homes and Dalit individuals from acts of looting, arson, sexual assault, torture, and other inhumane acts such as stripping and parading Dalit women and forcing Dalits to drink urine and eat feces.186 For example, the governments Annual Report on the Prevention of Atrocities Act, 1989 found that 30,022 cases were registered against Scheduled Castes and Scheduled Tribes under the Act in 2001 and 27,894 were registered in 2002.187 As staggering as these statistics are, they represent only a fraction of the violence committed against Dalits. A number of factors, including lack of police cooperation, fear of reprisals, and difficulty in gaining access to the judiciary contribute to a reluctance or inability on the part of Dalits to report crimes against them.188 Systematic non-registration or improper registration of atrocities also accounts for under-reporting (see Section V(A)(1)(a)(vi)). Much like cases of police abuse against Dalits, attacks by private actors often take the form of collective punishment, whereby entire communities or villages are punished for the perceived transgressions of individuals who seek to alter village customs or demand their rights.189 Retaliatory attacks for such challenges are rife (see Box 4).
Despite these offenses being criminalized under the Prevention of Atrocities Act, 1989 the systematic non-implementation of these provisions by the police (see Sections V(A)(1)(a) and V(A)(1)(a)(vi)) results in a continued pattern of violence, as is borne out in media reports. For example, a survey of Indian media during a six-month period in 2006 illustrates the extent and brutality of violent crimes against Dalits:
Dalit tries to fetch water beaten to death196
The need for India to address violence and bodily harm by private actors has also been documented by the UN special procedures. On June 8, 2004, the Special Rapporteur on racism, jointly with the Special Rapporteur on violence against women, sent a letter of allegation to India concerning a group of 200 people who attacked a Dalit settlement in Kalapatti village, Coimbatore district, Tamil Nadu, on May 16, 2004.197 According to the Special Rapporteur on racisms 2005 Annual Report:
The Dalits homes were reported to have been attacked by upper-caste villagers using swords and other weapons. Allegedly, inter alia, they pushed the Dalits to the ground, stomped on them, used degrading caste names to refer to them, sexually assaulted the women and attempted to pull off their saris. Other specific incidents mentioned were that an 8-month-old baby was thrown against a wall, a 75-year-old man was attacked, and a middle-aged woman was hit on the head as she attempted to protect her son. Close to 100 houses were said to have been burnt, money and jewels were stolen, and cattle owned by the Dalits were reported to have been killed. In total, 14 Dalits were allegedly admitted to the Coimbatore Medical College Hospital. Many Dalits are said to have tried to escape but were prevented from leaving the settlement. Fears have been expressed for their security.198
Box 4: Examples of retaliatory attacks against Dalits
When a Dalit man from the Dholapur district of Rajasthan, refused to sell bidis (hand-rolled cigarettes) on credit to the nephew of an upper-caste village chief, the upper-caste family retaliated by forcibly piercing his nostril, drawing a string through his nose, parading him around the village, and tying him to a cattle post.199
When Dalit agrarian labor activist Bant Singh, whose daughter was gang-raped in 2002, defied landlords threats and local upper-caste leaders in seeking prosecution against those who gang-raped his daughter, the landlords retaliated by violently attacking him, beating him so badly that both his arms and one of his legs had to be amputated; the remaining leg was permanently disabled.200
When Dalits from Amachiyarpatti village in Tamil Nadu resisted Thevars201 demand that they use coconut shells at tea stalls to prevent them from drinking out of the tea tumblers used by caste Hindus, Thevars retaliated by torching and burning Dalit houses in their village.202
When Dalits from the Dalit colony of Veludavur village in Villapuram district, Tamil Nadu, demanded their right to participate in a government auction of common properties in Veludavur, members of seven neighboring caste Hindu villages attacked their colony, destroying 400 huts, attacking women, children, and the elderly, and displacing 700 Dalit families.203
When a 16-year-old Dalit rape survivor from Sahalwada village in Madhya Pradesh, refused to withdraw the complaint she had filed against her attacker, he retaliated by pouring kerosene on her and setting her on fire.204
When a Dalit argued with an upper-caste farmer in Kothapally village in Andhra Pradesh, the upper-caste villagers attacked 80 Dalit families in retaliation. When the same Dalit man then went to the police to report the incident, a social boycott was imposed on all of the Dalits from Kothapally; they were thrown out of their village and denied every opportunity to earn their livelihood.205
The nature and extent of police abuse of Dalit women has been dealt with above in Section V(A)(1)(a)(iv). Dalit women are also especially vulnerable to violence by private actors who commit violent offenses with impunity. As the majority of landless laborers, Dalit women come into greater contact with landlords and enforcement agencies than upper-caste women, rendering them more susceptible to abuse.206 Landlords use sexual abuse and other forms of violence and humiliation against Dalit women as tools to inflict lessons and crush dissent and labor movements within Dalit communities.207 For example, upper-caste groups will engage in mass rapes of Dalit women or in retaliation against Dalits who strive for political empowerment or violate customary injunctions.208 In their attacks on Dalit communities, Ranvir Sena members committed acts of sexual violence against Dalit women. Human Rights Watch has documented a massacre of Dalits committed in Laxmanpur-Bathe, Bihar (see Section V(A)(1)(a)(i)), in which women were raped and mutilated before being killed.209 According to the Tamil Nadu Womens Forum, Dalit women are butchered, raped, and killed during caste riots.210
Dalit women also comprise the majority of victims of gang rapes in India.211 Human Rights Watch reported that on April 5, 2003, for example, four upper-caste men abducted a 14-year-old Dalit girl from her home just outside Jaipur, Rajasthan, and gang-raped her over a period of three days. Upon her return to her village, the villages upper-caste community threatened to remove her family if they reported the incident.212 Dalit women are also singled out for other indignities, like being paraded naked, even for petty disputes.213 These indignities have symbolic significance. For example, Human Rights Watch reported that on November 3, 2003, a Dalit woman in Kishanganj, Bihar, was paraded half-naked by a group of people who wanted to teach a lesson to her family for not relinquishing their claim to a piece of land.214
Vulnerability to sexual violence also results from Dalit womens lower economic and social status, leading many Dalit women to turn to prostitution for their survival.215 Other forms of abuse result from superstitious beliefs, according to which Dalit women may be branded as witches and blamed for certain mishaps in the community. Aside from the humiliation of being branded as a witch, Dalit women are also punished for these mishaps, for example by being made to eat feces and drink urine, by having their teeth pulled out, by having chili pepper put in their eyes, and by being beaten severely enough to result in death.216
Both the root causes of this abuse and the resulting social, physical, and mental trauma Dalit women suffer217 highlights the particular vulnerability of Dalit women which merits special protection by the State. However, rather than ensuring Dalit womens development and protection, India has failed to punish perpetrators and in some instances, has even directly participated in abusive acts.218 Cases documented by Indias National Commission for Women, by local and national non-governmental womens rights organizations, and by the press, reveal a pattern of impunity for attacks on Dalit women.219 However, due to uninterest, ignorance of proper procedure, or their own caste biases, the police have failed to register or properly investigate many cases of attacks against women.220 In all cases of attacks on women documented by Human Rights Watch, the accused state and private actors escaped punishment; in most cases, attacks were neither investigated nor prosecuted.221
Box 5: Impunity and obstacles to prosecution of rape and killing of Dalit women
While women in India generally face obstacles in prosecuting rape, if a woman is poor, belongs to a lower-caste, and lives in a rural area, it is even more difficult for her to gain access to the justice system.222 Those who are able to pursue cases of sexual assault face entrenched biases at every stage of the process.223 These obstacles exist whether the acts are carried out by mobs or by individuals.
For example,in October 2006, a mob of 60 upper-caste villagers stormed the Bhotmanges home as they were preparing dinner in Kherlanji village in Bhandara district. Fourty-four-year-old Surekha, her daughter Priyanka, and sons Roshan and Sudhir were dragged from their home, stripped naked, beaten and taken to the village square. At the village square, both women were raped for over an hour, after which all four family members were hacked to death. More than a month later, the police have yet to take action against the primary perpetrators of these crimes.224
Another case illustrative of the obstacles to justice was presented at the National Public Hearing held in 2000 by the NCDHR. In this particular case, Ms. Gangawati testified that after being raped at gunpoint in her own home, her unsuccessful attempts to get the local police to register her case required her to petition the Chief Minister of Uttar Pradesh and the NHRC. While the latter directed the district police to conduct an enquiry, the local police officer avoided filing her case for months, and even after her case was finally registered, no action was taken against her attacker.225
Article 5 (c): Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.
While Dalits now exercise their franchise in greater numbers than upper-caste community members,226 their right to vote freely and to stand for election is still not fully guaranteed. These rights have repeatedly been impeded by booth-rigging and booth capturing, denial of access to polls, intimidation, and violence.
Dalits right of political participation is denied through the decades-old practice of booth-capturing, whereby ballot boxes are stolen by hired hands.227 For example, in the 1998 national parliamentary elections in Bihar, the Election Commission had to order re-polling in over 700 voting stations after more than 1,100 people were arrested for booth-capturing and tearing up of ballot boxes.228 The Untouchability in Rural India survey found that in some 12.3 percent of villages, Dalits are still denied entry to polling booths.229
The 1998 Bihar elections also demonstrate the role of violence and intimidation in elections: in the first phase of elections 15 people were killed and dozens more were injured going to the polls;230 seven more deaths and further intimidation was reported during the second phase.231 The violence in Bihar serves as but one example of a widespread practice: according to a 1996 Associated Press report, armies formed by local politicians have intimidated villages during every election in the underdeveloped farmland of northern India.232 The Indo-Asian News Service (IANS) reported that on August 6, 2006, seven Dalit women from a village in Bihar were allegedly raped at gunpoint by upper-caste landowners for refusing to vote for an upper-caste landowners wife in the local elections.233
Violence and intimidation are also used to prevent Dalits from standing for election. In October 2005 a Dalit woman, Prabhati Devi, was burned alive for contesting a panchayat (village council) election against an upper-caste candidate in Mirzapur district in Uttar Pradesh in defiance of a local politicians warning not to contest.234 In June 1997 the Dalit leaders of the Melavalavu panchayat in Tamil Naduwho were elected to seats constitutionally reserved for Dalits235were murdered by members of the higher-caste Thevar community, signaling that the ceding of power would not be tolerated by those displaced from their positions on the council.236 Thevars also threatened Dalits with economic sanctions should any of them file for the position of panchayat president, a sanction that would effectively leave Dalits without employment or access to economic or social services in villages in that area.237
Those Dalits who are in positions of public office are often unable to properly discharge their public functions. For example, in November 2006 the Asian Human Rights Commission reported that Prem Narayan, a Dalit village head of Vajidpur village in Uttar Pradesh, had been facing discrimination, intimidation, threats, and physical violence in his attempts to discharge his duties as a village head.238
According to the Untouchability in Rural India survey Dalits are also denied entry to panchayat offices in some 14.4 percent of the 499 villages surveyed, which has the effect of denying them access and a right to be heard at the most immediate level of government.239
Article 5 (d) (i): The right to freedom of movement and residence within the border of the State.
Dalits right to freedom of movement and residence within India is curtailed by residential segregation, by conditions which make Dalits vulnerable to migratory labor, and by the forced displacement of Dalits in the aftermath of episodes of caste violence.
a. Forced Migration of Dalits
For Dalits, among the poorest and least powerful of Indias inhabitants, the choice of where to live is rarely a choice in any meaningful sense. Because Dalits are rarely able to own land (see Section VIII(D)(4)) they are unable to produce their crops for their own consumption or sale in the market.240 Given the limited amount of jobs and resources in India, and other economic hardships such as droughts, Dalits are often forced to migrate in search of work.241
The right of Dalits to enjoy freedom of movement and residence is further eroded by large-scale forced displacements of Dalit communities following episodes of caste-based violence. In a typical scenario, Dalit villages are attacked by neighboring upper-caste villagers. Dalits are assaulted during the attack, while their homes and property are looted or destroyed.242 Dalits then settle in and languish for months in temporary and inadequate homes on government property.243 The police offer little in terms of security in these cases, either ignoring Dalit calls for help, or actively participating in the violence and looting.244 Redress is not to be found from the local government eitheraside from distributing nominal amounts in compensation or promising construction of new homes, little is done to help the displaced Dalits return home or to prosecute those responsible for the attacks.245
Box 6: Instances of Forced Displacement of Dalit Villagers
The 1997 displacement of Dalit villagers from Mangapuram, Virudhunagar district, Tamil Nadu, illustrates the general pattern of Dalit displacement following caste-based violence. Prior to 1997 Mangapuram was home to 3,000 higher-caste Thevar and 250 Pallar (Dalit) families. On March 7, 1996, Thevars attacked Pallars, 150 Pallar houses were set on fire, and a Pallar man was burned alive. Pallars later destroyed several Thevar houses. In retaliation, Thevars threw petrol bombs into the Pallar residential area. On June 10, 1997, the deputy superintendent, a Thevar, attempted to force Pallars out of the village, colluding with hundreds of Thevar villagers who attacked the Pallars and set their houses on fire. The displaced Pallars took refuge in nearby villages, with 300 individuals housed in 250 poorly constructed huts, and another 200 housed in 70 huts. No action was taken against the Thevar police officials or villagers responsible for the attacks and the ensuing displacement.246
In 2003 a mass displacement of all 275 Dalit families from Harsola village in Haryanas Kaithal district followed an attack on the village by upper-caste men.247 Congress leaders who brought the case to the attention of the NHRC cited the irresponsible statements of local officials, such as those indicating that Dalits were enjoying the situation and were not interested in returning to their homes.248
A fact-finding report by Peoples Watch-Tamil Nadu and Dalit Human Rights Monitoring revealed that in 2004 the Dalits of Kalapatti village in Tamil Nadu were forced to flee after an attack by upper-caste Hindus in which over 100 Dalit homes were burned and other property was destroyed.249
2. Ensure Dalits right to leave any country, including ones own, and to return to ones country
Article 5 (d) (ii): The right to leave any country, including ones own, and to return to ones country.
Dalits right to leave India, while formally granted, is not substantively guaranteed, due to Dalits difficulty in acquiring relevant documents (such as birth certificates) and other proof necessary to get a passport.250
Dalits can suffer reprisal attacks against the families of those who are able to travel for employment abroad and send remittances back home. Caste-based prejudice has led to attacks against Dalits who become economically better off because of such remittances. Many Dalits in the village of Kodiyangulam, Tamil Nadu, for example, have been sending family members to work in Gulf states in an attempt to rise above their economic oppression at home. But according to the London paper The Guardian, on August 31, 2005, the Dalit villagers were assaulted by hundreds of rampaging policemen, who poisoned their well and destroyed the possessions accumulated over a lifetime of hard work.251 In a similar episode in Tamil Nadu in 1999, Dalits returning with money from jobs in the Gulf states and elsewhere found themselves attacked by landlords and police when they tried to buy land for their families.252
Article 5 (d) (iv): The right to marriage and choice of spouse.
Rigid social norms of purity and pollution are socially enforced through strict prohibitions on marriage or other social interaction between castes, in violation of Dalits right to marry and choose their spouse. These prohibitions on inter-marriage are a hallmark feature of the caste system. Inter-marriages between Dalits and non-Dalits are frequently the flashpoint for conflicts and violence.
The Untouchability in Rural India survey concluded that the most severely sanctioned public activity is a Dalit marriage procession passing through the village street.253 Wedding processions in northern India are symbols of joy, prosperity, and power, and often include large parties of family and friends accompanied by musical bands and dancing.254 Dalit wedding processions were banned in more than 47 percent of villages surveyed, as were festival processions in more than 24 percent of villages.255 The same survey also reported that in at least one village in Alwar district in Rajasthan, no marriage ceremonies for Dalits had taken place in several years as the upper-castes refused to allow any baraats (wedding processions) to come to the village.256 Adding to Dalits humiliation, in 8.4 percent of villages surveyed in the study, Dalits must seek the permission of the upper-castes to marry, and in up to another 10 percent of the villages Dalits are compelled to seek blessings on their marriages from the upper-castes.257 These acts of public subordinationinformal sanctions surrounding marriage activities which upper-caste members are freely permitted to carry on in publicare one of the most harshly enforced and widespread untouchability practices to continue today. As a result of the bans on marriage celebrations, many Dalit weddings are carried out quietly without the traditional forms of celebration.258
Condemnation for marriage between Dalits and caste members can be quite severe, ranging from social ostracism to punitive violence, including large-scale attacks on Dalit communities.259 Dalits who have married above their caste have reportedly been forced to break all ties with their families. In Attirpa, Kerala, a Dalit girl reported that although she was happy in her marriage she was no longer permitted to see her parents or her natal family.260 It seems that in instances where marriage between Dalits and caste-members is permitted, the caste family may condition it on rejection of contact with the Dalit family.261
Marriages between Dalits and non-Dalits are frequent flashpoints for conflict. Upper-caste dominated panchayats (village councils) have been known to extra-judicially punish inter-caste marriages between Dalits and non-Dalits through public lynching of couples or their relatives, murder (of the bride, the groom, or their relatives), rape, public beatings, and other sanctions.262 In May 2000 in Hardoi district in Uttar Pradesh, a police constable enraged by his daughters marriage to a Dalit was joined by other relatives in shooting and killing four members of his son-in-laws family.263 On August 6, 2001, also in Uttar Pradesh, an upper-caste Brahmin boy and a lower-caste Jat girl were dragged to the roof of a house and publicly hanged by members of their own families as hundreds of spectators looked on. The public lynching was punishment for refusing to end an inter-caste relationship.264
The rape of Dalit women by landlords and the caste-based practice of prostitution (see Section V(B)(4)(b)) deny Dalit women the right to marry as there are strong social taboos in India against marrying a woman who has had previous sexual relations; once a woman has been raped, she becomes unmarriageable.265
Although child marriage is illegal in India, the practice remains rampant, particularly in underdeveloped regions where economic pressure may force families into marrying off children at early ages in order to lighten the economic burden on families with daughters. This is often the case among Dalits. A 12-year old Dalit girl, Chenigall Suseela, was married off by her parents without her consent in Telangana, Andhra Pradesh, in 2003.266 Two years later she ran away from her husband, whom she claimed abused her, and threatened to commit suicide if forced to return. Suseela desired to return to school and sought help from the police and appealed to village elders. After initial refusal by elders from both her and her husbands village, Suseelas persistence and determination resulted in what is thought to be the first annulment of a child marriage in India in June 2005.267 Suseelas case is significant as she faced opposition to claiming her right to not be married in childhood and to choose her spouse due to her status as a Dalit and seemingly received little help from the police when she reported her situation.268 Sadly, there are many more Dalit children who are forced into early marriage by economic need and do not have the resources to demand their rights.
The prevalence of rape in villages also contributes to the greater incidence of child marriage in these areas. Early marriage between the ages of 10 years and 16 years persists in large part because of Dalit girls vulnerability to sexual assault by upper-caste men and by parents fear that their daughter will not be marriageable once she is raped.269
d. Inequality of women in family law
Indias marriage and divorce laws still do not grant equality to women despite the Constitutions guarantees to women of equal rights, liberty, justice, and the right to live with dignity.270
Article 5 (d) (v): The right to own property alone as well as in association with others.
The right to own property is systematically denied to Dalits. Landlessnessencompassing a lack of access to land, inability to own land, and forced evictionsconstitutes a crucial element in the subordination of Dalits. When Dalits do acquire land, elements of the right to own propertyincluding the right to access and enjoy itare routinely infringed.271 Land reform legislation is neither implemented nor properly enforced. Dalits efforts to secure land have been met with State violence or retaliation by private actors in the form of violence or economic sanctions.
Denial of the right to own property is at the very core of the caste system. R. Balakrishnan, then-Chairman of the Tamil Nadu State Commission for Scheduled Castes and Scheduled Tribes told Human Rights Watch:
The caste system is an economic order. It prevents someone from owning land or receiving an education. It is a vicious cycle and an exploitative economic arrangement. Landowning patterns and being a high caste member are co-terminous. Also, there is a nexus between being lower-caste and landlessness
The Special Rapporteur on housing has also expressed his concern with the extreme violations of Dalits human rights, including with respect to land and housing rights. The Special Rapporteurs 2005 Annual Report notes: A majority of Dalits are still prevented from owning land and are forced to live on the outskirts of villages, often on barren land.273
Denial of the right to own property is also practiced through forced evictions.274 On February 2, 2003, for example, 7,000 Dalits were evicted from their residences at Belilious Park, in Calcutta, West Bengal.275 To make way for a development and beautification scheme envisioned for the park, an approximately 500-strong Rapid Action Force, accompanied by ambulances, fire brigades and two or three bulldozers, forcibly entered the Dalit community in Belilious Park, evicted 700 families, and demolished hundreds of brick houses, a school building, temples, and statutes.276
A lack of access to land keeps Dalits in a state of economic dependency. Most rural Dalits are agricultural laborers who are economically dependent on their employers and therefore less likely to report abuse.277 Economic dependency on agricultural jobs also makes Dalits more susceptible to seasonal migratory work patterns (see Section VIII(D)(1)(a)).
b. Prevention of access to, and enjoyment of, own property
Even Dalits who do own land often do not have access to it, or are otherwise prevented from enjoying it. For example, a 1996 study by a NGO, which undertook a door-to-door survey of 250 villages in the state of Gujarat, found that, in almost all villages, many had no record of their land holdings, those who had title to land had no possession, and those who had possession had not had their land measured or faced illegal encroachments from upper-castes.278
c. Failure of land reform legislation and efforts
Land reform laws that were intended to provide reparations for the historic landlessness of Dalits279 have failed due to a lack of political will and bureaucratic commitment, loopholes in the laws, the tremendous manipulative power of the landed classes, excessive interference of courts,280 and problems in ensuring that oral tenancies are truthfully recorded in land records so as to enable implementation of the land to the tiller policy.281 The Special Rapporteur on housing has also attributed this failure to the government, noting
weak legislative provisions, inadequate implementation, and a lack of State commitment.282 The evidence of this failure is clear; for example, Dalit landlessness is estimated at around 75 percent. Of surplus land collected pursuant to land reform laws, only 69.5 percent has been distributed, of which Dalits have received only 34.6 percent.283
See Sections V(A)(1)(a)(ii); VIII(B) and VIII(E) respectively.
Article 5 (d) (vii): The right to freedom of thought, conscience and religion.
Dalits in India face a number of restrictions on their right to freedom of thought, conscience and religion. Caste-based human rights violations that are the subject of this report are often given religious sanction under the theory that Dalits must live segregated lives and perform menial occupations because they are born into a caste outside of the Hindu varna system. As a result, Dalits are routinely denied entry into Hindu temples (see Section VIII(F)(2)(b)). Dalits have responded to ill-treatment by upper-caste Hindus by converting en masse to Buddhism, Christianity, and historically to Islam. The loss of constitutional privileges upon conversion, however, serves as a serious impediment to their freedom to choose their religion. Additionally, most Dalits are ultimately unable to escape their treatment as untouchables regardless of the religion they profess.284 The introduction of anti-conversion legislation in several states has further made religious conversion extremely difficult if not impossible. Finally, Dalits may become targets of forced reconversions to Hinduism by sangh parivar groups.285
While the Indian Constitution grants certain constitutional privileges to Hindu, Buddhist, and Sikh Dalits (see Section V(B)), the same benefits do not extend to those who convert to Christianity or Islam. Dalit Christians and Muslims lose their scheduled caste status even though they are unable to escape discriminatory treatment from Christians and Muslims. Many Dalit Christians must pray in separate or segregated churches, bury their dead in separate cemeteries, and endure discrimination by non-Dalit priests and nuns.286
Descendants of Dalit converts to Islam also face discrimination at the hands of Muslims who trace their ancestry to Arab, Iranian, or Central Asian origin.287 Descendants of indigenous converts are commonly referred to as ajlaf or base or lowly.288 Further, upper-caste Muslims often deny Dalit Muslims entry to graveyards for burial.289 The continued practice of untouchability against Dalit Christians and Muslims undermines the argument that these communities should lose constitutional privileges upon conversion, and have led to charges that the Indian governments practice of assigning scheduled caste status on the basis of religion amounts to religious discrimination.290 Additionally, Dalit Christians and Muslims may be subject to multiple forms of discrimination on the basis of their caste and religion, a risk that has increased with the rise of Hindu nationalism in India.291
b. Anti-conversion legislation
Dalits right to freedom of thought, conscience and religion is explicitly denied through legislation that prohibits or impedes religious conversion. Seven states, a majority of them ruled by the Hindu nationalist BJPOrissa, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Rajasthan, and Tamil Naduhave introduced legislation designed to make conversion difficult or virtually impossible.292 Four of the anti-conversion laws explicitly stipulate harsher punishments where the convert is a Dalit, tribal, female, or a minor.293 Critics have argued that such bills represent a political move by Hindu nationalist groups to maintain their Hindu vote bank.294 Notably, mass re-conversions to Hinduism engineered by VHP, often using threats and coercion, are allowed under these laws.295
Article 5 (d) (viii): The right to freedom of opinion and expression.
Dalits right to freedom of opinion and expression is compromised by police abuse of Dalit activists (see Section V(A)(1)(a)(ii)), retaliatory attacks by private actors that are carried out with impunity (see Section VIII(B)), and social and economic boycotts against Dalits (see Section VIII(E)). These actions often result when Dalits refuse to carry out caste-based tasks or seek to defy the social order; they frequently entail punishment of entire communities.296 As the National Commission for Scheduled Castes and Scheduled Tribes surmises: Whenever Dalits have tried to organize themselves or assert their rights, there has been a backlash from the feudal lords resulting in mass killings of Dalits, gang rapes, looting and arsoning of Dalit villages.297
Article 5 (d) (ix): The right to freedom of peaceful assembly and association.
Though the right to freedom of peaceful assembly and association is enshrined in Article 19 of the Indian Constitution, Dalit protests are often met with police violence or arbitrary arrest and detention. Dalit activists have been detained and charged under draconian national security and anti-terrorism laws (see Section V(A)(1)(a)(ii)). In addition, police have made use of the Sedition Act, embodied under Indian Penal Code Section 124A, to prohibit peaceful meetings and protests.298 A number of such protests emerge in response to the desecration of statues of prominent Dalit Dr. B.R. Ambedkar by upper-caste community members resentful of these statues in public spaces.299 As one of the chief architects of Indias constitution and a Dalit leader, statues of Dr. Ambedkar represent to Dalits the potential for education, success, contribution to the political world of India, courage, [and] empowerment through relationship to government
300 When Dalits have protested such vandalism, the police and upper-caste community members have often responded with violent attacks and arbitrary arrests.301
In November 2006 the entire state of Maharashtra was engulfed in protests by Dalits after upper-caste community members desecrated a Dr. Ambedkar statue in Kanpur, Uttar Pradesh.302 While the mob violence, including the burning of a train, cannot be justified, the reprisals were extreme. In response to the protests, a Dalit youth was lynched, and the police opened fire in Osmanabad, killing two people.303 Moreover, a curfew was declared in four cities, where large-scale violence had erupted.304 In light of the violence, Prime Minister Manmohan Singh has convened a meeting for the United Progressive Alliance-led government to review the progress of development projects for Dalits.305
The Ramabai Killings
The Ramabai killings of July 1997 are a notorious example of the use of excessive force by the police in response to peaceful and democratic protests.306 On July 11, police opened fire on a crowd of Dalits protesting the desecration of a statue of Dr. B.R. Ambedkar in their settlement in Bombay.307 According to Human Rights Watchs investigations, the firingsin which 10 people were killed and 27 were injuredwere both unprovoked and caste motivated.308 The incident led to significant unrest throughout the state of Majarashtra, including rioting and social boycotts against protesting Dalits.309 According to the Times of India, the people owing allegiance to the ruling alliance parties had made determined efforts to terrorize and punish the Buddhists [converted Dalits] for having dared to protest against the shameful act of desecration of the Ambedkar statue.310 In one such instance, a Dalit woman was stripped and paraded naked around Karanja-Ghadge village in Wardha district, and later allegedly framed for murder by the police after she complained of her ill-treatment.311
Article 5 (e): Economic, social and cultural rights.
Dalits economic, social and cultural rights are routinely infringed by State and private actors with respect to all elements of the right to work (including in particular the right to free choice of employment and just and favorable conditions), the right to form and join trade unions, the right to housing (through segregation, discrimination in urban environments and limits on the right to own property), the right to access particular services in a non-discriminatory manner, the right to education and training, and rights regarding equal participation in cultural activities, such as wedding processions.
Box 7: Use of economic and social boycotts against Dalits
One practice that particularly influences the overall enjoyment of economic and social rights is the upper-caste imposition of social and economic boycotts against Dalits as a form of retaliation for assertion of rights. These boycotts are reinforced by the panchayat (village council) who levy fines against upper-caste individuals who refuse to participate.312
In April 1998 upper-caste community membersreportedly angered by the election of a Dalit to the local panchayat and by Dalit attempts to increase their participation in village politics and activitiesimposed a complete social boycott against Dalits in a village in Gujarat. Upper-caste community members were instructed not to supply anything, even basic necessities, to Dalits, and landowners were told to fire Dalit farmhands. Any upper-caste person found to be in violation of the boycott was fined and threatened. When Dalits tried to file a complaint for authorities to intervene, they were told that political pressure on police meant that a complaint could not be registered. Dalits continued to be denied basic necessities such as access to potable water, milk, and other daily needs even after the cases were filed.313
1. Ensure Dalits rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favorable remuneration
Article 5 (e) (i): The rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favorable remuneration.
The denial of the right to work and free choice of employment lies at the very heart of the caste system. Denial of free choice of employment and allocation of labor on the basis of caste are fundamental tenets of the caste system and are integral to sustaining caste inequality and hierarchy.314 Dalits talents, merits, and hard work are of little consequence in a system where occupational status is determined by birth. Dalits are forced to work in polluting and degrading occupations such as manual scavenging and are subject to exploitative labor arrangements such as bonded labor, migratory labor, and forced prostitution. Dalit children are also vulnerable to child labor in these and other areas. Dalits are also discriminated against in hiring and in the payment of wages by private employers. Dalits attempts to enforce their rights are met with retaliatory violence (see Section VIII(B)) and social and economic boycott315 (see Section VIII(E)).
In its combined Second and Third periodic reports to the CEDAW Committee, the Government of India reports that merely stray cases [of bonded labor] are reported from time to time.316 This is in direct contradiction to the overwhelming amount of evidence of the Dalit communitys continuing vulnerability to bonded labor. The government neglects to even mention caste discrimination in discussing indebtedness among the Dalit community, instead pointing to their poverty and to alcoholism as one of the reasons for their continued indebtedness and exploitation.317 Additionally, the effectiveness of the Governments measures is not critically examined. While the government reports on the number of scavengers, bonded labors, and the like who have been rehabilitated, it fails to estimate the number of Dalits who remain victims to these dehumanizing practices. Still, the government does acknowledge that it has a lot more to do to fulfill the Constitutional commitment of raising the status of [Scheduled Castes/Scheduled Tribes] to that of the rest of the population.318
Manual scavenging is a practice by which Dalits remove excreta from public and private dry pit latrines and carry them to dumping grounds and disposal sites.319 Though long outlawed, the practice of manual scavenging continues in most states,320 and will continue as long as dry latrines are used.321 In 2002-03 the Union Ministry for Social Justice and Empowerment admitted the existence of 6.76 lakh (676,000) manual scavengers in India and the presence of 92 lakh (9,200,000) dry latrines, spread across 21 States and Union Territories.322 According to unofficial estimates, the number of manual scavengers in India may be as high as 1.3 million.323 Manual scavengers are employed by private and public employers, including the military engineering services, the army, the railways, and other organs of the state.324
The occupation of manual scavenging is both caste-based and hereditary.325 It is also the only economic opportunity available to many Dalit women hailing from scavenger sub-castes,326 with the result that more Dalit women and girls work as manual scavengers than Dalit men.327 Manual scavengers are at the very bottom of the caste hierarchy; they also face discrimination from other Dalits who treat them as untouchables, creating an unquestioned untouchability within the untouchables
328 The entrenched discrimination against manual scavengers makes it difficult to find alternative employment pursuant to government rehabilitation schemes, and even more difficult to convince scavengers that they are able to take on, or are worthy of performing, different occupations.329
Manual scavenging is characterized by hazardous working conditions and health hazards. A manual scavenger from Paliyad village, Ahmedabad district, Gujarat, described how in the rainy season, the water mixes with the feces that we carry in baskets on our heads, it drips onto our clothes, our faces. When I return home, I find it difficult to eat food
. But in the summer there is often no water to wash your hands before eating. It is difficult to say which [season] is worse.330 Manual scavengers are routinely exposed to both human and animal waste without the protection of masks, uniforms, gloves, shoes, appropriate buckets, and mops.331 This has severe repercussions for their health; the majority of scavengers suffer from anaemia, diarrhea, and vomiting, with 62 percent suffering respiratory diseases, 32 percent suffering skin diseases, 42 percent suffering jaundice, and 23 percent suffering trachoma, leading to blindness. Many scavengers have also died of carbon monoxide poisoning while cleaning septic tanks.332 In Mumbai, for instance, Dalits are lowered into manholes to clear sewage blockagesoften without any protection.333 More than 100 workers die every year due to inhalation of toxic gases or drowning in excrement.334 The fear of being fired by municipality officials keeps manual scavengers from demanding higher wages or sanitary instruments.335
Manual scavenging is neither justly nor favorably remunerated, and several family members (usually women and girls) often have to be engaged to do the work assigned to one individual. As a result many families have to borrow money from their upper-caste neighbors and consequently go into bondage (see Section VIII(E)(1)(b)). In addition, almost no compensation has been delivered to the families of manual scavengers who are killed cleaning sewers.336
These problems have not been alleviated by the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, or its rehabilitation program. For example, an increase in the number of dry latrines since 1989,337 ineffectiveness in the training program338 and a lack of co-ordination among responsible ministries339 mean that despite the fact that the Act was intended to be fully implemented by October 2, 2002,340 only 151,930 out of the total 676,009 manual scavengers identified as of 2004 by the NHRC have been retrained and 394,638 have been rehabilitated.341 These failures reflect a fundamental lack of political commitment in the effort to eliminate manual scavenging.342 They have necessitated the filing of a public interest litigation petition on behalf of manual scavengers before the Supreme Court in 2003 seeking the enforcement of the Act.343 This petition alleges that manual scavenging still exists, including in public sector undertakings, and urges the Court to issue time-bound directions to the Government of India and to state governments to take effective steps to eliminate the practice and to simultaneously formulate and implement comprehensive rehabilitation plans.344 The lack of political will of state governments to implement the Act was evidenced in 2004 when the Supreme Court requested the court presence of Secretaries of seven states for failure to file responses to the petition.345 In response to the Supreme Court order, many states reported to the Court that no dry latrines existed in their states.346
b. Bonded Labor
There are an estimated 40 million bonded laborers in India, of whom 15 million are children.347 The vast majority of these laborers are Dalits or tribals.348 Bonded labor is sustained by the caste system, in particular through the traditional expectation of free labor and/or inadequate remuneration for work, the lack of Dalit ownership of land, social and economic boycotts levied by upper-caste community members (see Section VIII(E)),349 police extortion and looting (see Section V(A)(1)(a)(v)), and by acts or threats of violence that prevent Dalits from reporting abuses against them (including that they are being held in bondage).350
Bonded labor also results from indebtedness to employers or moneylenders on whom Dalits must rely because of inadequate wages351 and because of the reluctance of institutional agencies to lend to the poor in general and to Dalits in particular. Under the Bonded Labour System (Abolition) Act, 1976, payment of less than minimum wage for the purposes of working off a debt also amounts to bondage. Most agricultural laborers Human Rights Watch interviewed for a report published in 1999 were paid between Rs. 15 and Rs. 25 (US$0.38 to $0.63), or two to three kilograms of rice, per day, well below the minimum wage prescribed in their state.352 In 2002 Human Rights Watch interviewed Dalit villagers in Uttar Pradesh who weave saris on looms owned by traders and who are forced to labor on agricultural lands. We have very little land, less than five acres, a Dalit woman told Human Rights Watch. Yes, of course we work on the landlords land.353 In exchange for a days labor, a worker receives five kilograms of wheat, worth about Rs. 40 (U.S.$0.83).354 They dont even measure the five kilograms, one man complained. They just fill up a sack and bring it out to us.355Another man explained that they couldnt survive on the money earned from this and from sari weaving, so they had to take loans from the traders.356
While the Bonded Labour System (Abolition) Act, 1976 seeks to abolish all agreements and obligations arising out of the bonded labor system,357 the extent to which bonded laborers have been identified, released, and rehabilitated in the country is negligible.358 For example, out of the 3000 cases filed under the Act in Punjab since 1998, only 10 have completed the judicial process.359 Debt relief legislation has been similarly ineffective, with the NHRC concluding that the beneficial provisions of law, which could at least reduce debt burden of Scheduled Castes [,] have not been made use of to reduce the incidents of atrocities against Scheduled Castes related to indebtedness.360 Rehabilitation programs for individuals who have been released from bonded labor are not successful due to their failure to ensure substantial alternative employment,361 implement rehabilitation immediately after release,362 and ensure timely provision of benefits.363
The susceptibility of Dalits to forced migration for work has been outlined in Section VIII(D)(1)(a). Migrant laborers are particularly susceptible to abuse and exploitation; they are seldom paid the minimum wage, work long hours, live in subhuman conditions, and suffer physical abuse if they try to escape their place of work.364 These dangers have not been addressed by the Inter State Migrant Workmen (Regulation of Employment and Service Conditions) Act, 1979. Rather, the NHRC has identified this Act as the least successful of all labor laws.365 The NHRC attributes this failure to legal loopholes and to the apathy of political leaders in both sending and receiving states.366
d. Forced Prostitution the Devadasi System
Dalit girls and women are additionally vulnerable to exploitative labor in the form of forced prostitution (see Section V(B)(4)(b)).
e. Child Labor
While a survey conducted by Indias National Sample Survey Organization between 1999 and 2000 calculated 10.4 million working children, unofficial estimates reach 100 million.367 A majority of these children are Dalits.368 Dalit children are more likely to end up as child laborers due to their extreme poverty, the discrimination they face in schools,369 and the need to support their families, including after episodes of violence in which their families economic assets have been destroyed.370
A number of factors make Dalit children especially vulnerable to the types and effects of exploitative labor described above. For instance, migratory labor is especially pervasive amongst Dalits, and children are often expected to work alongside their parents in day-labor jobs.371 Dalit children also perform bonded labor. Fourteen-year-old Ashish M. working in the silk industry told Human Rights Watch that he could not leave his loom owner because he was paying off an advance, which in two years he had reduced from Rs. 2,500 (U.S.$25) to Rs. 475 (US$9.90). The owner pays, but deducts for the advance, he said. He deducts but wont write off the whole advance
We only make enough to eat.372 Dalit children, and girls in particular, are also exposed to the risks associated with manual scavenging both because of the hereditary nature of the work, and because they often must step in to assist their parents with their jobs.373 The health risks for child manual scavengers are manifest (see Section VIII(E)(1)(a)). Health risks are also endemic to the practice of devadasi which is directed at the prostitution of Dalit girls (see Section V(B)(4)(b)).
While child labor laws (in particular the Child Labour (Prohibition and Regulation) Act, 1986) are generally not sufficiently enforced, Dalit children remain especially vulnerable to bonded and other exploitative labor arrangements. The NHRC has found that, at least in Andhra Pradesh, there is a lack of credible efforts by political leadership to ensure exemplary punishment of employers who use child labor.374 This lack of accountability results from a number of factors, including the fact that upper-caste community members dominate local political bodies, the police and the judiciary, bonded labor vigilance committees, and child labor committees responsible for enforcing relevant laws.375 Apathy and corruption also contribute to a denial of the problem by many government officials.376 In some cases, the violations against Dalit children result from gaps in the law. For example, Dalit children are forced to work in industries considered polluting, such as the leather industry, which is outside the Act because the Act does not cover home-based work or consider the leather industry hazardous.377 Rehabilitation programs378 accompanying the Act also fail to adequately address child labor because they suffer from a lack of political commitment, non-enforcement, and weaknesses inherent in the Act itself.379
f. Discrimination in hiring and wage payments
Private employers routinely discriminate against Dalits both in hiring and in the payment of wages. This discrimination is felt acutely by Dalit women (see Section V(B)(4)(a)). The Untouchability in Rural India survey revealed that in 36 percent of the villages studied, Dalits were denied wage-paid employment in agriculture and in one-third of the villages were excluded from construction labor on the grounds that upper-caste community members did not want Dalits to pollute their homes. In 25 percent of the villages, Dalits received less than the market wage rate for their labor. According to NCDHR, untouchability was also practiced in the payment of wages such that the Dalits received wages in cash or kind from a respectable distance so that physical touch of a Dalit was avoided.380 Even well-educated Dalits are not immune from discrimination by private employers.381
Neither the Minimum Wages Act, 1948, nor the Equal Remuneration Act, 1976, sufficiently guard against these disparities. Specifically, the NHRC has concluded that the objectives of relevant laws have been soundly defeated by an inadequate and unresponsive enforcement machinery, the dominant social and economic position of the employer, a dilatory and ineffective adjudication process, the lack of alternative employment opportunities, and the absence of government support.382 Additionally, gaps in protection derive from the fact that the Minimum Wages Act does not apply to employers who employ less than 1,000 workers383 and employers do not need to pay the minimum wage in cash if their payment of wages in kind have been customary and their continuance is necessary.384 The latter provision is particularly problematic for agricultural laborers, a majority of whom are Dalits.385 Dalits seeking the protection of these labor laws also risk retaliation, including being fired or physically assaulted.386
Article 5 (e) (ii): The right to form and join trade unions.
Dalits right to form and join trade unions may be jeopardized in several ways. First, the Registrar of Cooperatives, the government agency in charge of overseeing the administration, working, and development of cooperatives,387 has been unwilling to register a cooperative whose workers are illiteratewhich Dalits often are, and in disproportionately greater numbers than the rest of the population (see Section VIII(E)(5)(c)).388 Second, the Registrar will often suspect economic activities where no product is manufactured, and are unlikely to register such cooperatives. This negatively affects the millions of Dalits who are employed in various service-oriented occupations as rag-pickers, manual scavengers, cleaners, day laborers and the like.389 Finally, Dalit workers are often excluded from the governments employment classificatory schemes, which define worker as someone with an employer.390 Dalits who do not have employers are not classified as workers, and are therefore unable to form or join any unions.
Article 5 (e) (iii): The right to housing.
Despite the Committees clarification that States Parties must [t]ake measures against discriminatory practices of local authorities or private owners with regard to residence and access to adequate housing for members of affected communities,391 Dalits right to housing is continuously undermined by deeply entrenched segregation, discrimination in housing in urban environments, and violations of their right to own property.
See Section VI(A).
In urban environments, Dalits right to housing is compromised by caste discrimination. For example, the unwillingness of upper-caste urban dwellers to live near or with Dalits means that Dalits seeking housing in urban areas will typically face a litany of questions from potential landlords seeking to determine their caste status.392 Similarly, housing developments built by Dalits or occupied by Dalit residents fare adversely in comparison with the demand and price for comparable housing.393
c. Violations of Dalits right to own property
See Section VIII(D)(4).
Article 5 (e) (iv): The right to public health, medical care, social security and social services.
Caste-based occupations that Dalits are made to perform, such as manual scavenging (see Section VIII(E)(1)(a)), and forced prostitution, routinely expose Dalits to serious and sometimes fatal health hazards, including exposure to HIV/AIDS. In addition, Dalits are frequently refused admission to hospitals and denied access to health care and treatment.
Being refused admission to hospitals, health care and treatment is a key way in which the Dalits right to public health and social services is denied. The Untouchability in Rural India survey found that Dalits were denied entry into private health centers or clinics in 74 out of 348 villages surveyed, or 21.3 percent of villages.394 Overall, the study found that in 30-40 percent of the villages surveyed, public health workers refused to visit Dalit villages.395 In 15-20 percent of villages, Dalits were denied admission to public heath clinics, or if admitted received discriminatory treatment in 10-15 percent of the villages.396
The study also reported that Dalit women deal with government officials most frequently in attempting to access healthcare for themselves and their children and often encounter discrimination from auxiliary nurse-midwives and anganvadi workers (community development workers).397 Dalits are denied entry to clinics, charged fees for services that should be free, and anganvadi workersmay even refuse to visit Dalit hamlets.398
In Uttar Pradesh, anganvadis (community centers) are known to practice untouchability and as a result pregnant women are forced to go without health care.399 Doctors at the local hospital in Pandalam Thekkekara, Kerala, are seen to spend much more time treating upper-caste women than the Dalit women.400 In Attirpa, Kerala, a non-Dalit anganvadi workerreportedly discriminated against her Dalit colleague.401
The general discrimination against Dalits in health care can also contribute to or exacerbate serious health problems such those associated with HIV/AIDS. Although HIV/AIDS affects a heterogeneous group of people in India, some of the risk factors (particularly migration and mobility and low status of women)402 point to a disproportionate impact on marginalized groups such as Dalits.403 Dalit women and girls who are forced to become devadasis are at particular risk of contracting HIV.404 Existing inequities and the stigma that accompanies HIV/AIDS also mean that Dalits infected by HIV/AIDS are vulnerable to increased social stigma and discrimination in access to education, health care, and other services as compared both with other Dalits and with non-Dalits who are HIV-positive.405
Article 5 (e) (v): The right to education and training.
Dalit children face considerable hardships in schools, including discrimination, discouragement, exclusion, alienation, physical and psychological abuse, and even segregation, from both their teachers and their fellow students.406 CERD has also noted the effects of this type of disparagement in stating that the degree to which acts of racial discrimination and racial insults damage the injured partys perception of his/her own worth and reputation is often underestimated.407 Caste discrimination persists even in institutions of higher education. Dalit childrens right to education is further eroded by their poverty and the generational repetition of under-education.408 A majority of Dalit children must work to help ensure their families economic survival. In addition their parents are far more likely to be illiterate.409
While the Constitution requires free and compulsory education for all children until age 14, the right to education free from discrimination is not secured for Dalit children. 99 percent of Dalit students are enrolled in government schools with substandard facilities that lack basic infrastructure, classrooms, teachers, and teaching aids.410 Dalit schoolchildren also face discrimination and discouragement from higher-caste community members who perceive education for Dalits as both a waste and a threat.411 Their hostility toward Dalits educationwhich includes discrimination against Dalit teachersis linked to the perception that Dalits are not meant to be educated, are incapable of being educated, or if educated, would pose a threat to village hierarchies and power relations.412
a. Segregation in classrooms and discrimination by teachers
Dalit childrens right to education free from discrimination is constantly undermined by the treatment they receive at school. Teachers maintain and impart discriminatory attitudes in their classrooms, forcing children to sit in the back of the room, segregating Dalit children from non-Dalits during lunchtime,413 forbidding non-Dalit children from sitting next to Dalit children or touching their plates (see Section VIII(F)(1)(c)), expressly limiting Dalit student participation in class, requiring Dalit children to take on additional custodial duties, subjecting them to verbal abuse, and grading them with unjustifiably low marks.414
Additionally, Dalit children are often subjected to corporal punishment by their teachers. As the Special Rapporteur on the right to education noted in his report before the 67th session of the then-Commission on Human Rights, teachers have been known to declare that Dalit pupils cannot learn unless they are beaten.415 These practices serve to discourage and alienate Dalit children, contributing to their high drop-out rates.416 Even more perniciously such practices serve to instill and reinforce Dalit childrens sense of inferiority, erode their sense of personal dignity and force them to internalize caste distinctions.417
b. Low enrollment and high drop-out rates of Dalit students
As a result of their discriminatory treatment, large numbers of Dalit children drop out of school, especially in the early elementary stages. Though the Committee has made clear that States Parties should [r]educe school drop-out rates for children of all communities, in particular for children of affected communities, with special attention to the situation of girls,418 the statistics for the enrollment of Dalit children, especially girls, are a cause for distress. According to the 2002 India Education Report, school attendance in rural areas in 1993-1994 was 64.3 percent for Dalit boys and 46.2 percent for Dalit girls, compared to 74.9 percent among boys and 61 percent for girls from other social groups.419 According to a 2001-2002 report prepared by the Indian government, the drop-out rate in Scheduled Castes during 1990-91 was as high as 49.35 percent at primary stage and 67.77 percent at middle stage and 77.65 percent at secondary stage.420 The statistics for higher education are no less alarmingthe same government report states that enrollment of Dalit students at graduate, post-graduate and professional/research/PhD levels is abysmally low, at 8.73 percent, 8 percent, and 2.77 percent respectively.421
Discrimination in schools and the resulting drop-out rates for Dalit children are intimately linked to child labor.422 A social worker in Karnataka told Human Rights Watch: A child will say to his or her parents, The teacher told me not to come tomorrow, that I am no good for studying. Instead of asking why the teacher has said this, the parents will send the child to work.423
c. Low literacy rates for Dalits
Low literacy rates for the Dalit population are a clear indication of the ways in which the school system fails Dalit children. The 2001 population census shows that the literacy rate among Dalits is 54.70 percent compared to 68.81 percent among others.424 Illiteracy in turn results in a lack of gainful employment options for Dalits.425
d. Labor patterns (migratory and child labor) affect Dalits access to education
Migratory labor serves as a hindrance to education in that it prevents Dalit children from being able to continuously attend school and, ultimately, from being able to advance with their class (once students miss 18 days, they are no longer allowed to advance in the same grade).426 Dalit parents generally take their children with them while searching for labor, and older boys and girls are expected to either work alongside their parents or stay at home to care for younger siblings.427 Though the attendant problems of migratory work are visited on non-Dalit agricultural workers as well, they are especially pervasive among Dalits, who are overwhelmingly landless and engaged in agricultural work, and thus uniquely susceptible to forces that push them into migrant labor428 (see Section VIII(D)(1)(a)).
e. Discrimination in Higher Education
Caste bias erodes Dalit students right to education even in institutions of higher education. In September 2006 allegations of caste-based discrimination and intimidations surfaced at the All-India Institute of Medical Sciences, Indias premier medical institute. In written complaints submitted to the director of the Institute, two first-year Dalit students complained of casteist remarks and various forms of harassment and intimidation from senior upper-caste students.429 The complaints were accompanied by a memorandum signed by 40 students, recounting similar incidents of harassment and intimidation.430 Similarly, Dalit doctors at the Guru Teg Bahadur Hospital have written about a biased attitude towards reserved category junior residents.431 The incidents of caste-based discrimination in institutions of higher learning are illustrative of the depth and breadth of anti-Dalit sentiment in education, and show that such biases transcend the rural/urban divide and affect the entirety of the education system, from elementary schools to universities.
f. Discrimination against Dalit teachers
Like Dalit students, Dalit teachers also face rampant discrimination; they too are segregated for purposes of food and water consumption.432 Discrimination against Dalit teachers has at times turned violent. In December 2005 Satyanarayan Prasad, a Dalit teacher, was assaulted in a village in Bihar by members of the dominant caste who could not accept the fact that their children were being taught by a Dalit. Prasad suffered serious head injuries as a result of the assault. When she attempted to lodge a complaint with the police, the police termed the incident as insignificant.433
Article 5 (e) (vi): The right to equal participation in cultural activities.
a. Dalits prohibited from taking part in religious and cultural rituals and festivals
The denial of Dalits right to equal participation in cultural activities is a core component of the caste system. The very fact of being a Dalit signifies being in a subordinate position visà-vis the rest of Hindu society, and exclusion from cultural activities is a clear way of demonstrating this separateness. Consequently, Dalits are routinely prevented from taking part in religious and cultural rituals and festivals, with clashes ensuing if they chose to disobey the prohibitions.434 The various ways in which the marriage ceremony is circumscribed are illustrative of such prohibitions; Dalit bridegrooms are not permitted to partake in the marriage tradition of riding a mare through the village, and Dalit marriages in general must be performed very quietly, without the public pomp and processions that usually accompany upper-caste weddings.435 The Untouchability in Rural India survey found that out of the 483 villages surveyed, a ban on marriage processions on roads was in place in 47.4 percent of villages, while a ban on festival processions on public roads was in place in 23.8 percent of villages.436
b. Compulsory, exploitative, and degrading nature of rural Dalits participation in cultural activities
On the rare occasions when Dalits are included in village ceremonies and festivals, the compulsory and degrading manner of their participation also speaks to the inequality they suffer. For example, during the Marama village festival in Karnataka state, upper-caste Hindus force Dalits to sacrifice buffalos and drink their blood, and to then mix the blood with cooked rice and run into the village fields without their chappals (slippers).437 Also, the participation of Dalits in the ceremonies of their villages often amounts to little more than exploitation, as village custom mandates that Dalits render free services in times of death, marriage, or any other village function.438
Article 5 (f): The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks.
The pervasiveness of residential segregation in violation of Article 3 of the Convention has been detailed in Section VI(A). Dalits are also denied equal access to a spectrum of places and services intended for use by the general public. They are excluded from or receive discriminatory treatment in private businesses, including tea shops, barber shops, village shops, and cinemas.439 The extent to which these practices violate Article 5(f) was noted with particular concern by the Committee in 1996 in the following terms:
The Committee is particularly concerned about reports that people belonging to scheduled castes and tribes are often prevented from using public wells or entering cafés or restaurants and that their children are sometimes separated from other children in schools, in violation of article 5(f) of the Convention.440
The table in Appendix I of this report reveals the magnitude of the denial of Dalits access to places and services intended for use by the general public.
Dalits are routinely denied access to police stations, government ration shops, post offices, schools, water facilities, and panchayat (village council)offices.441
The Untouchability in Rural India survey found that Dalits were denied entry into police stations in 27.6 percent of villages surveyed.442 This denial also enables violations of other rights guaranteed by the Convention, including Article 2(1) (see Section V(A)), Article 5(a) (see Section VIII(A)), Article 5(b) (see Section VIII(B)), and Article 6 (see Section IX).
b. Denial of Entry to Government Ration Shops & Post Offices
The survey also found that in 25.7 percent of villages surveyed, Dalits were denied entry to government ration shops that sell food at affordable prices to the poor, thus depriving them of access to food.443 Dalits were also forbidden to enter post offices in 19.2 percent of the villages surveyed.444
c. Segregation in schools
Segregation in schools undermines Dalit childrens right to education free from discrimination as guaranteed by Article 5(d)(v) of ICERD. Dalit children are routinely forced to sit in the back of the classroom, and are segregated from non-Dalit children during lunchtime.445 Even Dalit teachers may be segregated from non-Dalit teachers in accessing food and water during lunchtime446 (see Section VIII(E)(5)(a)).Segregation encourages high drop-out rates among Dalits447 and perpetuates untouchability practices by teaching non-Dalit children that untouchability is both an acceptable and necessary practice. This segregation is particularly evident in the Mid-Day Meal Scheme.
The Mid-Day Meal Scheme was initiated following a Supreme Court order as a means of addressing hunger and malnutrition among schoolchildren.448 However, according to a study conducted by the Indian Institute of Dalit Studies, the states of Uttar Pradesh and Biharwhere a third of Indias Dalits livehave refused to implement the program.449 Programs have also been closed because of upper-caste community opposition;450 upper-castes have also opposed the hiring of Dalit cooks for the program.451 Where the program is in place, Dalit students access to food has been restricted. In many places, the program has been organized in a higher-caste locality, away from the Dalit locality.452 In two locales in Tamil Nadu, the meals are provided in a temple, raising immediate questions of exclusion for Dalit children, who are generally forbidden entry into temples, as well as for other non-Hindu children.453 In October 2006 an article in the Indian Express quoted a primary school student, Shailesh Solanki, as follows: We are not allowed to sit with children of the other castes. We are always asked to sit separately. This is done every time we are served food at noon. Even the food served to us is less in quantity.454 Objections to the segregation of Dalit students in the mid-day meal program have been dealt with punitively. For example, in December 2003, a school district in Gujarat transferred seven Dalit teachers out of the district for objecting to this segregation.455
d. Denial of access to water and irrigation facilities
One of the most basic and most harmful ways in which segregation through untouchability is imposed upon Dalits is through denial of access to water. Dalits are not allowed by their higher-caste neighbors to draw water from the same wells or hand-pumps as non-Dalits.456 More than 20 percent of Dalits do not have access to safe drinking water, only 9.84 percent of Scheduled Castes households have access to sanitation (as compared to 26.76 percent for non-Scheduled Castes households),457 and the vast majority of Dalits depend on the goodwill of upper-caste community members to allow them to access wells, which are almost always situated in upper-caste colonies and villages.
Denied adequate quantities of potable water, Dalit women may need to travel long distances to obtain the amounts necessary for the survival of their families, resulting in the infringement of other fundamental rights, such as the right to the highest attainable standard of health, the right to adequate food, and the right to gain a living by work.458 Lack of sufficient water and adequate sanitation facilities devastates the health of entire communities.459 Furthermore, for the large numbers of Dalits who are dependent on land for their sustenance, the inability to access water for irrigation purposes has enormous consequences on their livelihood and sustenance.460 The Untouchability in Rural India survey found that in slightly more than a third of some 466 villages surveyed across 11 states, Dalits were denied access to irrigation facilities and thus prevented from tending to fields that they cultivate.461 Finally, the deprivation of a basic human right such as water is a constant reminder of the inherent indignity of Indias caste system
Many privately run businesses, such as cafés, restaurants, cinemas, and hotels462 practice forms of untouchability. Private individuals also enforce untouchability in their homes, as well as in public spaces, including public streets, market places, temples, and even in cremation or burial grounds.
a. Prohibition on Inter-Dining between Dalits and non-Dalits
The prohibition on inter-dining operates in restaurants, hotels, tea-stalls, and schools in addition to private homes. The Untouchability in Rural India survey found that in over 70 percent of villages surveyed, the prohibition against inter-dining is prevalent; the practice was reported in each of the 11 states studied.463 In many tea-shops and dhabas (food stalls), separate crockery and cutlery are used for serving Dalits.464 The two-glass system, whereby Dalits use a separate set of glasses for tea-drinking which they are then required to wash, is practiced in nearly a third of all villages surveyed in the report.465
Box 8: Studying Together, Eating Apart466
Velmurugan, a Dalit boy, and Ramesh, a non-Dalit, are friends from school. Velmurugan is often invited to study with Ramesh at his home, as Velmurugans home in the Dalit colony does not have electricity and the street lamp outside his house is often broken. Velmurugan is the brighter student, and he helps Ramesh with his homework. However, Velmurugan must always sit outside the house on the floor below the elevated platform of the veranda, where Ramesh sits. At dinner-time, Ramesh is called inside to eat with his family. On the rare occasions on which Ramesh insists that his friend partake in the meal, his parents stipulate that Velmurugan must eat outside and off the plate that is kept for the Dalit housekeeper. Velmurugan is asked to wash the plate before and after he eats.
b. Denial of Dalits Entry to Temples
Denial of Dalits entry to Hindu temples by private individuals is pervasive; the Untouchability in Rural India survey documented this practice in each of the 11 states studied.467 The rate of prevalence was as high as 64 percent on average, with the practice occurring in 94 percent of villages surveyed in the state of Karnataka.468 This is the case despite the fact that the denial of temple entry is one of the most strongly resisted forms of untouchability, in relation to which numerous campaigns and court cases have been waged.469 Denial of access to temples implicates the right to free exercise of religion (see Section VIII(D)(5)) and access to public activities that are held in temples, such as the Mid-Day Meal Scheme discussed above (see Section VIII(F)(1)(c)).
In one incident recorded in the Untouchability in Rural India survey, upper-caste community members constructed a wall to divide the village cremation ground (ghat) of Gwali Pallasia (Indore district, Madhya Pradesh) that had once been shared by Dalits and non-Dalits, forcing Dalits to use another ghat some distance away. This segregation is strictly enforced; an attempt by Dalits to use the village ghat resulted in beatings, ransacking and looting, followed by a boycott, denied participation in village activities, and evictions after Dalits registered complaints with the police.470
d. Discrimination in public streets and market places
Dalits are perpetually subjected to humiliation and degradation through informal but strictly imposed caste codes that regulate their dress and their behavior in the presence of upper-caste community members. Dalits are denied equal access to public streets and areas by upper-castes. Dalit men are often forced to stand in the presence of upper-caste men on roads, or to bow to them.471 Dalit women often adopt a humble demeanor and maintain a submissive posture to show respect to upper-castes.472 Dress codes are imposed by upper-castes, which forbid Dalits from wearing new or brightly colored clothes. Clean clothes are also often forbidden by the upper-caste in rural India.473 In some upper-caste neighborhoods, Dalits are expected to remove their shoes and dismount from bicycles when on public streets.474