Akhtar ScheduledCastesDalits 2020

Scheduled Castes, Dalits and Criminalisation by ‘descent’
Author(s): Zia Akhtar

Source: State Crime Journal , 2020, Vol. 9, No. 1 (2020), pp. 71-99
Published by: Pluto Journals
Stable URL: https://www.jstor.org/stable/10.13169/statecrime.9.1.0071
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SCHEDULED CASTES, DALITS AND
CRIMINALISATION BY ‘DESCENT’
Zia Akhtar
Abstract: The Scheduled Castes/“Dalits” represent the “untouchables” in India’s constitu-

tional framework and are traditionally outside the four-tiered rung of the Hindu religion.
The notion of “superiority, pollution and separateness” is ingrained in the stratification of
caste and the victim complex is subsumed in the unwritten public code. Despite the safe-
guards in the constitution and affirmative legislation they still suffer from institutional
discrimination and structural violence inherent in the caste system. It takes the form of
hierarchy which is an intrinsic part of the Hindu faith and the Dalits are employed in occu-
pations such as human scavenging. The prevalence of caste discrimination in the rural
areas of India makes for any affirmative legislation to be ineffective for the majority of the
population. The issue has been magnified in recent times by the ascension of Bharatiya
Janata Party (BJP) into power which has retrenched Hindutva, with the consequence that
Dalits who convert from Hinduism to Islam or Christianity have to forfeit access to welfare
benefits. This paper analyses the cause of the institutional discrimination that criminalizes
the Dalit communities and the lack of impact of the legal protections afforded to them. It
will argue that the victimization of the “untouchables” will continue because of the rigid
caste structure, lack of enforcement of legal protection in villages, economic privilege and
the resort to ideology of the current government.
Keywords: Caste; Dalits; hate crimes; criminalization; reservations; Anti-Conversion Law;

Harijans; ICERD; savarna
Introduction
The Hindu religion is based on a stratified caste system of which the lowest rung
are the Dalits who are also known as the “untouchables” and they are deemed to
be outside the strata of the religious pyramid.1 The highest echelon of the Hindu
caste are the Brahmins who traditionally dominate the formal structure of the faith
and exercise the most influence.2 There has been discrimination and continuous
violence against the Dalits who are considered as untouchables. Caste hatred is an
insidious form of offensive behaviour that needs to be abrogated by a constitu
tional provision and proscribed under Indian criminal law, and the degradation of
Zia Akhtar, LLB LLM Gray’s Inn.
Produced and distributed by Pluto Journals www.plutojournals.com/scj/

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72 Zia Akhtar
the lower castes who inherit occupations such as manual scavenging should be
prohibited in all the municipalities of India.
The Indian state achieved independence in 1947 and adopted a secular appro
ach of not giving primacy to any one religion in its model constitution. Its offi
cial path to political and economic development was based on the objective of
achieving tolerance and religious equilibrium.3 However, unlike in the West,
where secularism originated from the conflict between the church and state, its
origins in India were intended to maintain pluralism through the Hindu religion
sharing its inheritance with the other established religions whose followers are
also inhabitants of India.4
Under the title of a “secular” India the majority Hindu nation-state officially
adopted the path to political and national integration by framing the constitution of
1949 that was officially adopted in 1950. The author of this document, Dr B.R
Ambedkar, was the main proponent of the caste system’s eradication and wanted
its abrogation to be written into the constitution. There was ambiguity in Mahatama
Gandhi’s approach in dealing with its manifestation, as he called “Untouchables”
the Harijans – Children of God – but did not proclaim the need for the dissolution
of castes (Gandhi 1973: 416). The inability of Nehru, India’s first Prime Minister,
who was a Brahmin to abolish its privileges also meant that the issue of the caste
system stayed on the agenda after he died in 1964.
Under Articles 341–2 of the Indian Constituition, the President “may specify the
caste, races, or tribes or part of groups within centres, races and tribes) as Scheduled
Castes or Scheduled Tribes in relation to State or Union Territory”. Clause 5 of the
Fifth Schedule to the Constitution can be invoked, by “which a law can stand
amended through a notification in its application to the entire Scheduled Area in a
State or any part thereof”. It is presumed that “the Constitution envisages a discrimi
nating and cautious approach on the part of the executive” (Jaideva 2004: 266).
The Constitution contains no criteria for identifying the Scheduled Castes, but
India’s Ministry for Social Justice and Empowerment gives the following admin
istrative criteria: “extreme social, educational and economic backwardness arising
out of traditional practice of Untouchability”. Scheduled Caste status is estab
lished by a Caste Certificate issued by the authorities attesting to the bearer’s
membership of a Scheduled, or Untouchable, caste.5
The issue of institutional discrimination against the Dalit community who com
prise the Scheduled Castes has been magnified in recent years. Despite the laws
that are in place for their protection they are victims of public opprobrium and
violence. The population of Dalits exceeds 200 million in India and there has been
an increase of 30 million over the decade ending in 2011. This is the estimated
population of Hindu, Sikh and Buddhist Dalits (Scheduled Castes) and does not
include Christian and Muslim Dalits.6
State Crime 9.1 2020

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Scheduled Castes, Dalits and Criminalisation by ‘descent’ 73
This paper will examine the historical origins of the “caste” system in the
Hindu religion whose sacred concepts have been adopted and conveyed into an
institutional structure. This has led to victimization and hate crimes against them
despite legal protection in the Indian Constitution. There will be an analysis of the
concept of discrimination by “descent” and hate against minorities will be explored
by a comparative analysis. The paper will also examine the ideological convic
tions of the founding fathers in the religious/philosophical conflict of Gandhi/
Ambedkar, and it is argued that the former’s victory precluded the framing of an
enabling law to abolish the caste system.
Origins of stratification in text
The Hindu religion is a heterogeneous group of faiths which manifests itself in a

powerful ethos of worship and ceremonial expression. This is especially true of its
rituals which its adherents revere in their reliance on the Hindu gods who take on
forms of living creatures in the human and the animal kingdoms.7 The central
belief is the idea of reincarnation which can be from human to animal and vice
versa, after rebirth, and the “entire universal process, that gives rise to the cycle”
is governed by karma which “may be good or bad” and based upon its utility the
“subsequent birth” is decided (Mysore, Nanjegowda and Purushothama 2015).
The practitioners of Hinduism are mainly concentrated in India, Nepal and
Bhutan and in the diaspora spread across the world. They existed as a disparate
entity until they were fused into a single religious category by the British when the
Indian Census of 1872 was launched to survey the different mix of religious com
munities in the empire. This made it compulsory to state the subject’s religion on
the criteria of identity (Bhagat 2013). It culminated in the followers of non-Abra
hamic religions collectively registering themselves as Hindus with the Raj’s
administrators in India (Flood 2003).
From the time of its inception the Hindu faith never worshipped one monothe
istic God which is the hallmark of the revealed faiths such as Christianity, Judaism
and Islam.8 It is not a proselytizing religion or a code of law that is immutable and
inalienable or possesses a structure that differentiates between the spiritual and
temporal branches. The doctrine does not accord recognition to a Messenger or
conveyor of scriptures, such as manifested by Jewish and Muslim faiths, or in the
Trinity that is premised in the doctrine of Christianity. The worshippers belonging
to the Hindu doctrine are not bound to or ascribe to one particular tradition or
strand of the faith and they are able to claim the spiritual inheritance of humanity
as theirs from its eclectic foundations (Rig Veda, 1.164, 35).
Despite the lack of a metaphysical Divine Being the Hindus are deemed to have
received their religion through conveyance in the form of the four Vedas. This was

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74 Zia Akhtar
the transmission of knowledge encapsulated in the Vedic scriptures. The Hindus

have a concept of shruti, revealed Truth, conveyed by Rishis or ancient sages, as
well as the concept of smriti, remembered Truth, transferred from human to human
in a chain. Where there is a conflict between the two the shruti takes precedence
over smriti (Khettry 2011).
It was in the nineteenth century under the British Raj’s colonial authority that the
caste system was recognized in the legal system of India. The evolution of the Hindu
religion is conveyed by the literary documents that comprise the Rig Veda, Sama-
Veda, Yajur-Veda (in two versions, Black and White) and Atharva-Veda, with each
Veda comprising a Samhita (core) of ritual hymns and prayers, accompanied by
Brahmanas which interpret the rituals in the Samhitas, Aranyakas concerned with
mysticism rather than ritual and Upanishads, which raise advanced philosophical
and spiritual questions (Patton 2004: 38). A quartet of sources serve as a repository
of spiritual laws (Heehs 2002: 41, 57). The authoritative Rig Veda forms a sequence:
the Mantra, Samihitas or hymns, the Brahmanas or explanations of Mantras or ritu
als, the Aranyakas and the Upanishads. The Upanishads carry a fundamental com
mitment to spiritual values and the form of human consciousness so they may be
regarded as the source, in of India’s civilisation (Easwaran 2007: 302).
The origins of the caste system in the Hindu religion is located in the Purushasukta
section of the Rig Veda (10.90) where there is reference to the “gods creating it by
sacrificing the primal Parusha” and subdividing his body into the “Brahmins who
emanated from the visage of the Lord, or the Creator; the caste of Kshatriyas arose
from His arms, Vaisyas came from His thighs, and the Shudras emerged from His
feet”. The division becomes a stratum according to the Guna (quality) and Karma
(kind of work) which determines the caste of a man. This version is corroborated by
Lord Krishna in the Bhagavat Gita who states: “The four castes were emanated by
Me, by the different distribution of qualities and actions. Know Me to be the author
of them, though the action less and inexhaustible” (Bhaktivedanta 2006: ch. 13.4).
The Rig Veda takes an inclusive approach towards caste by giving it an ethical
foundation. It states, “In eyes of the Lord, no one is big, no one is small; all are
alike; all are recipient of Godly love and blessing for prosperity” (5.60.5). The
substantive and underlying principle of the caste system, or Varna Dharma, is in
essence the division of labour and Sri Swami Sivanda defines this as the law of
“spiritual” economics that was regulated after the Rishis (sages) evaluated human
nature and arrived at the conclusion that all men were not equally suitable for all
kinds of work. Therefore, the sages
found it necessary to allocate different kinds of duties to different classes of people,

according to their aptitude, capacity or quality. The Brahmanas were in charge of
spiritual and intellectual affairs. The work of political administration and defence

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was given to the Kshatriyas. The Vaisyas were entrusted with the duty of supplying
food for the nation and administering its economic welfare. The Sudras did menial
work. The Rishis felt all these needs of the Hindu nation and started the system of
Varnas and Asramas. (Srivanda 1999)
The survival of the caste system is Hinduism’s most enduring legacy in the
Indian subcontinent and beyond. It can be compared in its longevity to the custom
of sati, which was the enactment at the death of the husband of the widow entering
the funeral pyre and burning herself to death. It can be
traced back to the 4th century BC. While evidence of this ceremony of wives self
immolating themselves with dead kings only appear between 5–9 centuries CE this
practice is considered to have originated within the warrior aristocracy of India. This
gained popularity in the 10th century CE and remained popular until the 19 century.
(Early 2011; 370)
The ritual of sati has been prohibited by legislation, first by the Bengal Sati Act
1829, extended to the whole of India in 1861 under the Indian Penal Code, and then
further affirmed by the promulgation of the Commission of Sati (Prevention) Act,
1987. However, it is still “glorified” in some parts of India and there was a death
recorded in Jhunjhani in West Bengal in 1987. There are currently estimated to be
“250 temples where there are discrete congregations that glorify this ancient rite
along with puja (worship of the gods)”. In the present era the practise of sati has been
“largely confined to Rajasthan and the Ganges belt” in rural India (Diya 2009).
The secular constitution of India has adopted a legal framework to deal with
abuses of the caste system and the question arises to what extent it has been suc
cessful. The mitigation by the secular laws has to be seen in relation to the major
ity of the population which follows the Hindu religion in India.9 There are many
factors involved in this discrimination, and criminal law’s inability to deal with the
problem is manifest in the disenfranchisement of the “untouchables” which stems
from the traditional fabric of the land that gave birth to the caste system.
“Ought” as an ideal of the constitution
The Indian Constitution framed in 1950 provides in its Preamble the aims and
objectives which include the provision:
to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought,
expression, belief, faith and worship; EQUALITY of status and of opportunity; and to
promote among them all FRATERNITY assuring the dignity of the individual.10

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76 Zia Akhtar
This has been affirmed in the courts as an essential part of the framework and the
basic law of India.11 However, within this dispensation there is recognition of the
caste system and its existence has been accepted despite its obvious inequality and
separation of the inhabitants into groups.12 The Constitution contains provisions
that guarantee a non-religious ‘secular” republic and prohibits discrimination in
Articles 15–17.
Article 15 forbids victimization, stating that “(1) The State shall not discrimi
nate against any citizen on grounds only of religion, race, caste, sex, place of birth
or any of them; and (2) No citizen shall, on grounds only of religion, race, caste,
sex, place of birth or any of them.” Article 15(5) makes special provisions for the
castes, tribes and other under “privileged classes that was not originally a part of
the Constitution and was introduced by the (Ninety Third Amendment Act, 2005).
This provision states:
Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the
State from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes
or the Scheduled Tribes in so far as such special provisions relate to their admission
to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions
referred to in clause (1) of article 30.13
Article 16 sets out an intention to prevent inequality of opportunity in the public

domain under Section (2) as follows:
No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of,
any employment or office under the State.14
Article 17 abolishes the concept of untouchability to which the Dalit communities

were once assigned and states:
Untouchability is abolished and its practice in any form is forbidden. The

enforcement of any disability arising out of Untouchability shall be an offence
punishable in accordance with law.15
The constitutional guarantees are abstract and they are not in accordance with the
reality. This is manifested in the circumstances of the members of the Scheduled
Castes who remain an under-privileged class and disenfranchised. The social

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circumstances into which a Dalit is born is determined by birthright, which ensures

that they are at the lowest rung of the caste hierarchy.
Annapurna Waughray has described their place in the hierarchy as follows:
There is no agreed sociological or legal definition of caste, but a number of salient

features can be identified. Castes are enclosed groups, historically related to social
function, membership of which is involuntary, hereditary (that is determined by
birth) and permanent . . . Unlike class, it is not generally possible for individuals or
their descendants to move into a different caste. Caste is governed by rules relating
to commensality (food and drink must only be shared by others of the same caste)
and is maintained by endogamy (marriage must be within the same caste). It
entails the idea of innate characteristics and hierarchically graded distinctions
based on notions of purity and pollution, with some groups considered to be ritually
pure and others ritually impure. A crucial feature of caste in South Asia is the
concept of “Untouchability”, whereby certain people are considered to be
permanently and irredeemably polluted and polluting, hence “untouchable”, with
whom physical and social contact is to be avoided. Despite the notional nature of
caste, Untouchability is conceptualised as an innate physical property separating
the Untouchables from the rest of society. (Waughray 2012)
The existence of caste has been affirmed in Indra Sawhney v Union of India [1993]
AIR SC 477, when the Supreme Court defined caste as a socially homogeneous
class and also an occupational grouping, membership of which is involuntary,
hereditary and discriminating. Chief Justice Reddy held (at para. 2):
“Lowlier the hereditary occupation, lowlier the social standing of the class in the
graded hierarchy.” Even where the individual does not follow that occupation,
“still the label remains and his identity is not changed. The lowliness attached to
them (Shudras and Panchamas) by virtue of their birth in these castes, unconnected
with their deeds. There was to be no deliverance for them from this social stigma,
except perhaps death” and the misfortune of having this social division – or as
some call it, degradation – super-imposed on poverty. Poverty, low social status in
Hindu caste system and the lowly occupation constituted – and do still constitute –
a vicious circle.
This ruling is a poignant statement that the caste system exists and is based on
social differentiation which is contingent on ancestral descent. This is determined
by birthright in terms of defining the status of the person born inside the caste,
which is a preordained structure that is also reinforced by social standing of caste

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78 Zia Akhtar
groups. The stratification on vertical lines impacts on the economic status of the
lower castes by locking them within these groups. It also been found that “caste
identity is more salient amongst high caste individuals due to the belief they have
about being privileged to have inherited this positive image of high caste at birth”.
This is in comparison to the “low caste individuals who would not have a salient
caste identity because they believe that this identity is not essentialised and belong
ing to this group has negative consequences” (Mahalingam 2003).
The Indian caste system has been defined as “a complex social structure
wherein social roles like one’s profession became ‘hereditary,’ resulting in
restricted social mobility and fixed status hierarchies” where the “highly identified
group members would protect the identity of the group in situations when group
norms are violated”. The outcome is a “black sheep effect”, with “high caste indi
viduals’ group identity (caste norm violation condition)” – when “threatened their
salient high caste identity would increase, thereby resulting in devaluing the status
of their fellow in-group member if the latter is perceived as perpetrator” (Sankaran,
Sekerdej and von Hecker 2017: 487).
There are laws in place that are for all the castes of Hinduism such as the Hindu
Personal Status laws regulating forms of marriage, guardianship, divorce and suc
cession.16 The historical experience of the Scheduled Castes is drawn from them
being outside Hinduism’s established caste parameters. The circumstances of their
victimization may lead to death or the forfeiture of property because they are
ostracized despite an umbrella of protection provided under the Civil Rights Act
1955, and the Scheduled Castes and Tribes (Prevention of Atrocities) Act 1989,
that have been enacted to give them safeguards under the Indian Criminal Code
1861 (as amended).17
The forms of discrimination inherent in the Hindu faith have meant that affirm
ative action has not been successful in relieving the status of the Dalits as an
underclass in the country. The policies devised by the Indian legislature to pro
mote the cause of the disadvantaged groups, including the Scheduled Castes stems
from the Article 38 which reserves office holding in Indian society for “other
backward classes”, inter alia on the basis of caste.18
These are justified by the central government as an extended policy to achieve
the objectives under the Directive Principles of State Policy and, in particular, the
goals as defined under the Indian Constitution in Articles 36–51 which is gov
erned by Part IV. The affirmative action policies are grouped under three heads:
education, public services and electoral seats to the lower house and state legisla
tures. This form of established non-discrimination and affirmative action is a legal
technique that is based on enabling the representation of Dalits in the public sector
of the country.

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In terms of legislation to augment this provision there have been various

government inquiries and recommendations. The Mandal Commission was
established by the Janata Party in 1979 to investigate the possibility of increas
ing the participation of the Other Backward Classes (OBCs) and the Scheduled
Castes in the employment and educational sector. It recommended an increase
in the participation of the Dalit/Scheduled Castes in the Indian public institu
tions and identified a need in the social, economic and educational sectors
(Mandal Commision 1991).The major objective was the phased development of
the vocational training programmes and an increase in the reservation quotas
for SCs and STs (Scheduled Tribes) that was in proportion to their population,
i.e. 22 per cent and 27 per cent for the OBCs under the constitutional provi
sions. This was accepted on 7 August 1990 in the interests of “social justice”
when the Congress government was in power which gave instructions for the
implementation of the report as a constitutional requirement.19
However, the Mandal Commission recommendations were rejected by the
Bharatiya Janata Party (BJP), that represents the conservative Hindu electorate. It
was in power in 1998 and refused to implement the increased representation of
Dalits in the Indian public sector.20 This had been fixed by case law up to a certain
maximum which could not be exceeded.21 The consequence is the inability to
effect the affirmative or “ reverse” discrimination for the Scheduled Castes under
Article 15 of the Constitution.
This is corroborated by the recent findings in a survey which state that there are
spatial differences in the integration of Dalits in the mainstream employment
industry. It found that in Tamil Nadu and in the north-east India where the
Scheduled Castes predominantly live over 80 per cent of government jobs were
reserved for them despite a previous Supreme Court ruling that 50 per cent should
be the maximum. The various quotas have partially achieved their most basic task
and in public jobs members of backward groups claim more reserved places than
before. The Dalits had just 1.6 per cent of the most senior (“Group A”) civil serv
ant positions in 1965, rising to 11.5 per cent by 2011, not far off the 16 per cent,
the general ratio of the population in the community, which is the higher share for
more junior occupations (The Economist 2013).
The report states:
Beyond an obsession with quotas, and making untouchability illegal, India’s rulers
have done nothing to address ongoing social repression by caste. Village councils,
for example in Haryana, in effect outlaw marriages between different castes, or
within certain sub-caste groups. The practice of “honour” killings of youngsters who
marry against caste rules remains dismally prevalent. Police and politicians show

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80 Zia Akhtar
little interest in prosecuting those responsible. Nor does it help that social mobility
of all sorts has been slow in India, mostly because it has remained poor and
predominantly rural for so long due to decades of wrongheaded economic policies.
For a Dalit peasant or labourer the reservation policy is unlikely to make much
difference; getting a job in a factory or a call centre would transform his life. (The
Economist 2013)
The data show only a tiny minority have prospered, with an estimated 1 per cent
of the two “scheduled” groups falling into the highest wealth bracket (estimated at
four times above the poverty margin) calculated from 2005. The status elevation
has not been uniform and in labour exchange the benefits that have flowed did not
percolate to the lower classes. There is a general duty on the part of the Indian
legislature to promote the cause of these disadvantaged groups by the affirmative
action programmes. This has not been successful in the implementation and led to
a tiered economic class.
Ajit, Donker and Saxena (2012) corroborate this in their findings of
[the] caste diversity of Indian corporate boards of a thousand top Indian companies –
accounting for four-fifths of market capitalization of all companies listed in the
major stock indices in India – measured by the Blau-index shows that their median
score for 2010 is zero, indicating that there is no diversity at all. Indian corporate
boards continue to remain “old boys clubs” based on caste affiliation rather than on
other considerations (like merit or experience).
Kannabiran (2006) in a critique of the social pyramid argues that “in the public
sector the entire public domain in education, industry, employment has been cap
tured by the creamy layers of Indian society”. This consolidates their “intergenera
tional concentration of privilege by whittling down claims to affirmative action to
a bare minimum and absolving themselves of any responsibility for the continuing
oppressions that Dalit communities face in contemporary India”.
The prevalence of the reservation system “only divides the society leading to
discrimination and conflicts between different sections since, it is oppressive and
does not find its basis in casteism. It is actually the converse of a communal liv
ing” (Upadhyay 2011). It has been argued that the cause of the problem lies not in
the demarcation of the categories but in the ever increasing rural and urban divide
and issues of migration. This has meant that the Dalits have become more victim
ized in rural areas because of the scarcity of resources. Findings show that “in 70
per cent of these villages Dalits are denied entry into the homes of the higher
castes, while in 63 per cent of these villages they are denied access to places of
public worship and 49 per cent to burial grounds” (Shah et al. 2006: 63–5). The

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policy framework should be for “bridging the gap between rural and urban India”
in order to diminish the “concentration of power in few hands and provide suste
nance to the weaker section i.e. the rural society” (Mehra 2019).
There are many examples of institutional discrimination against Dalit commu
nities.22 The most vivid case is in the scavenging occupations where communities
restrict their employment to latrines and septic tanks. The Indian Parliament has
enacted the Employment of Manual Scavengers and Construction of Dry Latrines
(Prohibition) Act, 1993; Prohibition of Employment as Manual Scavengers Act
2013; and the Rehabilitation Act, 2013, to address the problem by making such
employment a punishable offence.23
Human Rights Watch (2014) produced a report Cleaning Human Waste:
“Manual Scavenging,” Caste, and Discrimination in India that describes the effects
of manual scavenging and the lack of enforcement of legislation. The report stated
that the “historically rooted and ongoing injustice faced by communities engaged in
manual scavenging points to failures in implementing previous laws and policies”
in overcoming these practices. It cited recent examples from communities involved in
manual scavenging in the states of Gujarat, Madhya Pradesh, Maharashtra,

Rajasthan, and Uttar Pradesh and exposed the failures of previous government
attempts to end manual scavenging and eliminate the entrenched attitudes and
discriminatory practices that still bind members of affected communities to this
degrading and unnecessary occupation.
The Directive Principle in the Indian Constitution that is considered fundamental

in the governance of the country, makes it an enforceable duty of the state to apply
the principles needed to achieve a just society, this has not been successful in lev
elling differences based on status and wealth. The income distribution and
the material benefits such as differentials in wages have not been narrowed for the
Scheduled Castes and the discrimination in employment continues, leading to the
perpetuation of tradition and degrading occupations for the Dalit communities.
Criminalization of the Dalit community
In India there are two main types of crimes which bring caste within its frame
work. The first type of offence is governed by the Indian Penal Code (IPC) 1860
(as amended) that covers crimes that are on statute books and governs serious
offences. The second type of offence is hate crimes which are motivated by preju
dice and victimization based on the person being member of a group or because of
ancestral linage. These offences arise in caste hatred and they are registered under
Special and Local Laws (SLL). While the IPC category includes mostly violent

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82 Zia Akhtar
crimes that affect the general population, the SLL are enacted to counter other
social practices prohibited by various laws. The IPC crimes include: (i) murder,
(ii) rape, (iii) physical assault or hurt, (iv) kidnapping, (v) robbery, (vi) arson,
(vii) dacoity and (viii) other classified IPC crimes.
The offences under the SLL are covered by the (i) Protection of Civil Rights
Act (PCRA) 1955, and (ii) The Scheduled Castes and Scheduled Tribes Prevention
of Atrocities Act (PAA) 1989. The PCRA defines “untouchability” as a “disabil
ity” by stating in its Preamble “An Act to prescribe punishment for the [preaching
and practice of ‘Untouchability’] for the enforcement of any disability arising
therefrom and for matters connected therewith”.24
The PAA specifies in Chapter II the Offences of Atrocities in Section 3 which
states:
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat
any inedible or obnoxious substance;
(ii) acts with intent to cause injury, insult or annoyance to any member of a
Scheduled Caste, or a Scheduled Tribe by dumping excrete, waste matter,
carcasses or any other obnoxious substance in his premises or neighbourhood;
Section 4 sets down the punishment for the “public servant[s]” who, not being a
member of a Scheduled Caste or a Scheduled Tribe, “wilfully neglect” their duties
under this Act, who “shall be punishable with imprisonment for a term which shall
not be less than six months but which may extend to one year”.25
While the IPC crimes include acts of overt force and aggression that are pre
dominantly violent crimes, the SLL offences concerning untouchability related
offences are hate crimes. These are akin to racial prejudice committed with the
intention of humiliating members of the lower castes, with lesser amounts of vio
lence involved. These are deemed as largely non-violent crimes and cover insult
ing or humiliating behaviour.
Sharma argues that there should be a more punitive regime for caste hatred
based on retributive justice and
strengthening of the judicial response to caste-based atrocities so as to serve as an

effective deterrent for perpetrators and to attempt to establish a broader anti-
discriminatory climate in the country. While the Prevention of Atrocities Act, 1989
mandates special legal provisions such as special public prosecutors to ensure
speedy trial of cases, setting up of special courts in every district, no bail for
perpetrators, and socioeconomic rehabilitation and protection of victims and
witnesses, in practice, the implementation is severely deficient. (Sharma 2015)

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There is a reason why hate crimes are difficult to litigate and there is a lack of
prosecution of these offences when they happen against a disadvantaged commu
nity. These hate crimes are characterized by a deliberate intention to victimize an
individual because of his membership of a certain social group. The most crucial
element that differentiates hate crimes from similar non-hate crimes is the under
lying motivation; comparative findings that come from the United States indicate
that the relative economic position of the dominant group against the disadvan
taged group is an important determinant of hate crimes.
Becker (1968) established the connection between economics and crime by
advocating that “a useful theory of criminal behaviour can dispense with special
theories of anomie, psychological inadequacies, or inheritance of special traits
and simply extend the economist’s analysis of choice”. He argues that the crimi
nal law has been “a mixture of deterrence, compensation, and vengeance” and
these were “contradictory and cannot generally be simultaneously achieved”.
The policy approach that may reduce criminal behaviour is based on reducing
social differences and the “anticipation of conviction and punishment reduces
the loss from offenses and thus increases social welfare by discouraging some
offenders”. Therefore, the social welfare that discourages offences is measured
“by income” and “effectiveness”, which is “defined as a ratio of the maximum
feasible increase in income to the increase if all offenses causing net damages
were abolished by fiat”.
Green, whose studies were concentrated on New York neighbourhoods, regards
hate crimes as a “function of ill will on the part of the perpetrator with respect to
the victim” and considers that envy and resentment play a considerable part in its
commission. This is because relative status matters in the perception of the
offender so it is “plausible that if the income gap between the minority and domi
nant group reduces, this could provoke envious members of the dominant group to
resort to violence as a way to reduce the well-being of minority members”. Green
finds that American state-level data for 1992–5 show the ratio of black income to
white income to be positively associated with hate crimes (Green, McFalls and
Smith 2001).
This implies that integration depends positively on the well-being of another
while hatred and resentment implies the opposite. This concurs with Mitra and
Ray’s perspective: they consider the relationship between strata-based “economic
progress and inter-group conflict” as the explanation for “the incidence of ethnic
conflict as a function of economic progress of two groups in society where mem
bers of either group can be aggressors or victims”. They apply the data from
Hindu-Muslim riots in India and their findings state that “Hindu per-capita expen
ditures have either a negative effect or no effect on conflict while the coefficient
on Muslim per-capita expenditures is positive” (Mitra and Ray 2014).

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84 Zia Akhtar
However, there are two main differences between these studies which are, first,
they analyse communal riots, which represent violence involving a large group of
people and not individually targeted caste-based crimes. Secondly, and crucially,
their data does not allow the separation of perpetrators and victims by religion,
except by inference, whereas in caste hatred data, the identification between vic
tims (SCST) and perpetrators (non-SCST) is obvious from the beginning.
The caste hatred in India is an intra racial problem and it can be reflected in
the competition theory that suggests that inter-group conflict is heightened when
the traditionally privileged majority group and the minority group start to have
overlapping interests. Jacobs and Wood proffer:
niches could be in the form of occupational sectors, residential patterns, etc. using
data for 165 U.S. cities find that as economic competition for jobs increases between
blacks and whites, murders of blacks by whites increase. Additionally, cities with a
black mayor experience more murders of blacks by whites. (Jacobs and Wood 1999)
D’Alessio, Eitle and Stolzenberg (2002) concur with this assessment, that “eco
nomic competition (measured by the ratio of black and white unemployment rate)
has a negative effect on crimes committed by whites against blacks. On the other
hand, political threat (ratio of black to white voters) has no significant effect on
interracial crimes.” This is corroborated by studies of violence in the form of
“riots and lynchings that also suggest that competition for jobs leads to greater
inter-racial violence” (Price, Darity and Headen 2008; Beck and Tolnay 1990;
Olzak 1990). These hate crimes suggests that these offences occur in order to
isolate the minority that is being marginalized. Lyons, in his research on Chicago
neighbourhoods, argues that it is “as an exclusionary tactic for turf protection and
to maintain the existing hierarchy in society. Many hate crimes result from domi
nant group concerns about minority group encroachment.” (Lyons 2007). This
leads on to the “frustration-aggression thesis” of hate crimes that is argued by
those researchers who state that “economic stress” is the basis for the offenders
to vent their anger and frustration on vulnerable minorities. The prevalence of
this in White-Black hate crime finds that there is the “economic insecurity on
affirmative action policies that increase competition with minorities” (Dollard
et al. 1939; Pinderhughes 1993).
This is an approximate comparison with caste-based hate crimes in India
against the Dalits because it emanates from circumstances such as in the rural
areas where there in competition for resources. It has been confirmed by studies
conducted in villages across the states that show discrimination against the lower
castes in accessing the facilities and amenities in the local areas. The hate crimes
against the Scheduled Castes link to their perceived advantage in affirmative

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action public sector programmes. This aggravates the traditional prejudices

against the community and the entrenched basis of the caste system aggravates
the victim–perpetrator equation.
Anti-conversion law and racial hatred
The conversion of a Dalit to a different religion disinherits him from the Scheduled
Castes under the Constitution and so they lose the protection offered to the Dalits
as a social group. This serves as a disincentive for Dalits to convert to either
Christianity or Islam in order to circumvent the disadvantages of being born into a
lower caste. This means that the lack of a Scheduled Caste status affects Muslim
and Christian Dalits and as a consequence both communities suffer from a high
incidence of atrocities and economic and social disabilities owing to the govern
ment’s reluctance to moderate its discriminatory policy on reservation in occupa
tion or education.
There are further disincentives to converting because of the Anti-Conversion
Law, which has been adopted by six states under the provision of the Constitution
that makes it a dual responsibility of the Union government and the State to enact
such legislation. The law is inaptly called the Freedom of Religion Act, the first of
which was enacted by the State of Odisha (Orissa) in 1967 and the Himachal
Pradesh has promulgated it in 2019 by unanimous passage in a Congress part-
ruled state. The standard section states the potential convert from Hinduism to
Islam or Christianity has to inform the government before proceeding with the
conversion (Chakramakkil 2013). Section 3 makes it an offence “to provide for
prohibition of conversion from one religion to another by use of force or induce
ment or by fraudulent means and for matters incidental thereto”. A public renun
ciation of the original faith which can offend those in Hindu-majority areas will
lead to repercussions against the Dalit communities. The law imposes a double
jeopardy on the lower castes who make the transition of faith. If found guilty of
breaching the law they are subjected to a “purification” or a cleansing ritual and
made to “reconvert” to their original religion.26
The conversion of minorities in India does represent an obstacle and is fraught
with the hazard of criminalization.27 The uncertainty of authorization, loss of bene
fits and social sitigmatization makes it a difficult proposition for those escaping the
liabilities of caste status. There is a sustained campaign to nullify any attempt to
convert by reconverting to the Hindu religion under the purported “ homecoming”
of those who had left Hinduism. The ideas imposed by this programme, of being of
an “original” or “authentic” lineage of belonging to the land of Hindu ancestors,
seem to be violation of the Constitution principles enshrined in Article 25. This
states “that subject to public order, morality and health, and to the other fundamental

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86 Zia Akhtar
rights guaranteed in the Constitution, all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and propagate religion”.28
This proactive campaign for the anti-conversion movement at a national level
defined as “ghar waapsi” (Coming home) is inspired by the conservative Vishv
Hindu Parishad party. They have announced “We are bringing people back into
the Hindu fold, as it is their original religion.”29 This includes the lower threshold
for religious toleration as exemplified in the enforcement of a beef ban in the BJP-
governed Maharashtra state that has forbidden slaughtering of cows as part of the
protection of gow mata on pain of criminal penalty (Pandharipande 2015).
The Indian Supreme Court has institutionalized the concept of “ghar waapsi” in
KP Manu v Chairman Scrutiny Committee for Verification Certificate,4 SCC 1
(2015), when it ruled that the Dalits could claim the benefits of reservation and
affirmative legislation if they reconverted to Hinduism from another religion. The
Court stated: “there has been detailed study to indicate that the Scheduled Caste
persons belonging to Hindu religion, who had embraced Christianity with some
kind of hope or aspiration, have remained socially, educationally and economi
cally backward” (para. 37).
The Court held that the non-Hindu status could remain dormant for several
generations and when the Dalit is readmitted as a Hindu the “eclipse” will dissi
pate and the caste will be “automatically” revived (para. 36). All the reconverted
Hindu had to do was to prove that his “parents or forefathers” were Scheduled
Castes (para. 38).
This has been interpreted as legitimizing the doctrine of ghar wapsi and of insti
titutionalizing the conversion back to Hindu religion by inducement and persua
sion, to the detriment of Dalits who fail to convert from other religions. The
“eclipse metaphor” can be distinguished because it “epitomizes the selective
thinking of castes and religion, allowing Hindus reconverts to gain SC benefits
while other converts cannot” (Jenkins 2019: 167).
The UN Special Rapporteur on Religion and Belief has stated that the compul
sion to reconvert is “a test case for freedom of religion” and the Dalit communities
in India cannot be “forced to follow a particular religion” (Bielefeldt 2012). He
has highlighted this as an error on an international scale because of the ratio of
Dalits in the Indian population and the inability to be socially mobile when they
convert and exercise the freedom of choice in religion that is guaranteed by Article
26 of the International Convention of Civil and Political Rights (ICCPR) 1966.30
The ICCPR ratified by India on 10 April 1979 protects against discrimination
based on “social origin,” and also against torture, degrading treatment, arbitrary
arrest, detention and promotes equality in the courts and equal protection of the
law. In Article 2(1), the state parties are pledged to “respect and ensure to all indi
viduals within its territory and subject to its jurisdiction the rights recognized in

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the present Covenant” and Article 2(2) requires states “to adopt such legislative or
other measures as may be necessary to give effect to the rights” in the ICCPR.
The Indian Government has been censured by the Human Rights Committee
(HRC) established through the ICCPR to monitor state party compliance of its
rules.31 The refusal by India to sign the Optional Protocol to the ICCPR means that
the HRC does not have jurisdiction to review human rights complaints made by
Dalit complainants but it does have the power to comment on India’s ICCPR obli
gations as a whole.32 In 1997, the HRC determined that India was violating its obli
gations under the Convention through its treatment of Dalits because, despite the
existence of legislation to protect them, they still “endure severe social discrimina
tion” and face “inter-caste violence, bonded labour, and discrimination of all kinds”.33
The International Committee for the Elimination of Racial Discrimination
(ICERD) has defined caste prejudice as ancestral hatred or hatred by descent and is
a form of “race” hatred.34 While there is no specific Convention that outlaws dis
crimination based on caste the ICERD Committee has recommended the inclusion
of a prohibition against caste discrimination and analogous systems of inherited
status in domestic legislation.35 In its General Recommendation 29 it states that
discrimination “against members of communities based on forms of social stratifi
cation such as caste and analogous systems which nullify or impair their equal
enjoyment of human rights” is void. This draws attention to factors that allow such
communities to be recognized, “including inability to alter inherited status, socially
enforced restrictions on outside marriage, and dehumanising discourses” (3).
There has been an increasing tendency in the UN framework to issue docu
ments that declare discrimination based on birthright as illegal. The UN Special
Rapporteur on Contemporary Forms of Racism and the UN Sub Commission on
the Promotion and Protection of Human Rights have taken note of the existence of
discrimination on the basis of descent which can be interpreted as evidence of the
caste discrimination in the South Asian communities.36 Racial discrimination
based on descent, which has been declared illegal by the international legal frame
work, is central to the functioning of Indian social and political system. This is
ingrained in the basic philosophy of the Hindu faith and has not been overridden
by a legislative provision. The Dalits are still a legal entity and despite their his
torical discrimination the ancient codes that criminalized and disenfranchised
them are still recognized on the statute books.
Permeating a bureaucracy and savarna
The retention of the caste system in the Indian Constitution is a retrograde step that
is against its fundamental spirit. The freedom struggle never reached a consensus
on whether it should be preserved or abrogated by a legal sanction. The main cause

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88 Zia Akhtar
was the tolerance of Mahatama Gandhi, a practising Hindu, who wanted to retain
caste as an embodiment of Hinduism. He called the Dalits the “Harijans” – the
Children of God (1973: 416) – and blessed them as specially ordained to live as
redeemers in the next life.
Bidyet Chakarbarty states that “Gandhi was a believer in the caste system”
because he envisioned (2006: 118):
the moment untouchability (in its present form) goes (the) caste system itself will
be purified, that is to say, according to my dream, it will evolve into the true
varnaddharma, the four divisions of society, each complimentary of the other and
none inferior or superior to the other, each is necessary for the whole body of
Hinduism as any other.
Gandhi imbibed the Hindu concept of Swaraj that was central to his doctrine and
included caste as subsumed in the fabric of society.37 The Mahatama also assimi
lated the concept of Sarva Dharma Sambhav, which means harmony between the
personal and public duties and this enshrines an ethical Hindu belief that “Human
life is a synthetic whole, which can not be divided into watertight compartments
of social, religious, and political life” (Roy 2002).
This is in contrast to Dr B.R. Ambedkar, a Hindu nationalist who later con
verted to Buddhism and whose main concern was the “annihilation of caste”
(2014). In this he expressed the concept of “constitutional morality” over the tra
ditional and social morality that Gandhi espoused. He argued that “Constitutional
morality is not a natural sentiment. It has to be cultivated. We must realise that our
people have yet to learn it. Democracy in India is only a top-dressing on an Indian
soil which is essentially undemocratic.” (Das 2010: 175).
He argued that that even the well-intentioned Brahmans could not help Dalits,
as they cannot revoke the Vedas which prescribed caste-based hierarchies. The
purpose behind his concept was to utilize the politico-legal agenda and abolish the
caste system through the Parliament in its entirety. His biographer Christophe
Jaffrelot (2007) argues:
Ambedkar tried hard to show the mechanisms of the caste system and clarified the
origin of untouchability in order to support his fight for equality. For him, if the
lower castes were not in a position to overthrow their oppressors, it was because of
two reasons: they had partially internalised hierarchy; and because of the very
characteristics of caste-based inequality.
The internalization of hierarchy in Hinduism was in Ambedkar’s view because of

the “sanskritization process” that implied the caste system could not have been

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imposed by the Brahmins over society, but that it evolved when they were able to
persuade other groups that their values were universally at a higher plane than oth
ers and that they had to be emulated by others, including by endogamy, a marital
rule which insulated the system within itself. This is defined by Ambedkar as
“graded inequality”, which could be contrasted with other kinds of inequality by
the prevalence of the dominated groups and, therefore, prevents them from replac
ing the oppressed caste. The purpose was to unite the Dalits and to endow them
with a separate identity that would offer them an alternative route out of “sanskriti
zation” (Ambedkar 1989: 101–2).
It shows a fundamental difference of perspective and it can be surmised that
Gandhi’s view prevailed and he was able to override the objections that there
could be a more radical interpretation of religion. The process of sankritization has
been revived by the electoral victories of the Bharatiya Janata Party (BJP) in 2014
and 2019, led by Narendra Modi who has empowered Hindu conservatism or
Hindutva and has given sustenance to the Gandhian philosophy of Swaraj Dharna
Sandhav.38 There has been an affirmation of the caste system based on the hierar
chy of Hindu ideology that has been reinforced by the savarna narrative on caste
(Raggopal 2009: 17).This has long existed among the upper castes, but has gained
prominence over the last five years under the BJP rule.
The savarna is the process of indoctrination that is achieved by means by lan
guage. It has been argued that the medium of communication in the
Indian public sphere, despite its linguistic diversity, remains dominated by two
dominant languages and their media – the more widespread Hindi, and the more
profitable English media. While the audiences and reach of both these language
media vastly differ, both media environments and the discourses they produce
are predominantly controlled by savarna (upper-caste Hindu) writers and editors.
(Rao 2017)
Its impact is detrimental to the safety of the Dalit community and exposes them to
discrimination and violence. Sumit Chaturvedi (2019) defines the scope of savarna
by evaluating the conveyance of information about caste identity. He argues that
upper-caste groups are utilizing
conferences, publications, social media and advertizing to reconsolidate their

identities and recruit followers, and in doing so, are building identities that can be
mobilized very quickly in the digital age.
Further, he observes that the manipulation of “caste identities is contrary to con

stitutional values and is being done with the express purpose of consolidating an

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90 Zia Akhtar
overarching savarna identity that has as its basis the suppression of Dalit groups”.
Chaturvedi contends that this is a modern form of “‘savarna assertion’ which in no
way challenges caste oppression and instead does the exact opposite – it legiti
mizes and enables caste violence and oppression”.
The BJP’s constituency is governed by the vote bank of the upper castes. This
can be established by the ascension to power in last year’s Lok Sabha elections
evaluated by Centre for the Study of Developing Societies (CSDS), a research
institute based near Delhi university. The CSDS’s post-poll survey showed that
the BJP received huge support from upper castes, i.e.
Brahmin, Baniya, Rajput, Kayastha – and dominant communities, such as the

Jats, in Uttar Pradesh indicates that the BJP garnered the support of 82 percent
voters from the Brahmin community, 89 percent from the Rajput community,
70 percent from the Vaishya community and 91 percent from the Jat community.
The consolidation of upper castes, the Kurmis and Koeris (dominant communities
within OBC), and the lower Other Backward classes behind the BJP was far
stronger than the consolidation of Jatavs, Muslims and Yadavs (behind the
grand alliance).
They contend that the BJP was successful in “consolidating the majority
community yet again through its own social engineering” (Beg, Pandey and
Khare 2019).
The BJP’s agenda is likely to erode the affirmative action programs for the
Dalit community. These are in the civil service which will recruit personnel later
ally rather than by quota-based selection in the Modi’s government. Two key
posts have been abolished that were part of the Indian Administrative Service
(IAS) which enforced the reservation system: the Enforcement Directorate (ED)
and the Central Vigilance Commissioner. These now come under the Union gov
ernment appointments system (Sharma 2019).This will impact on the Scheduled
Castes’ take-up of their reservation quotas and the enforcing mechanism.
There is a renewed process of lateral entry into the IAS that has been affirmed
by the Department of Personnel and Training (DoPT): “In a single cadre post,
reservation does not apply. Since each post to be filled under this scheme is a
Single Post, reservation is not applicable.” Furthermore, the Modi government
has indicated since the 2019 elections that there will be a transfer of 42 public
sector undertakings to private sector undertakings. The private sector is not
bound to apply the reservation rules that will provide the quotas to the Scheduled
Castes, hence further disenfranchising the Dalit communities (Mandal 2019).
The Union Public Service Commission (UPSC) which recruited personnel from

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the Scheduled Castes has shredded staff and the number of recruits fell from
1,236 in 2014 to 759 in 2018 (Dhingra 2019).
Conclusion
The Indian federal Constitution, despite its lofty preamble, has not abolished dis
crimination against the Dalit communities, which persists in the country. The pub
lic discourse that has shaped the protection of the Scheduled Castes has not been
able to prevent the mutation of the Dalit communities into an underclass. This is
because they have traditionally been outcasts in the Hindu religion. This has led to
their stigmatization and marginalization permeates the Indian Union, particularly
in the rural areas where enforcement of affirmative action is difficult and there are
scarce resources.
The instrument of stratified discrimination is an affront to the dignity of labour
and leads to criminalization of the Dalit communities. The ideology of Hinduism
as interpreted by Gandhi was an acceptance that the suffering of the Dalit was a
form of atonement. This contrasted diametrically with the abolitionists whose
main concern was to infuse “constitutional morality” over the traditional practice
of the caste system. This could have led to the promulgation of a law that abol
ished caste as Dr Ambedkhar aspired to, but he was unsuccessful in implementing
this because of opposition from the retentionists.
The circumstances of the Dalit communities have been made worse by the
increased possibility of being victims in BJP-ruled India where the upper caste
Hindus have affirmed the privileges of the caste system. The adoption of the
medium of communication that applies the savarna is a contemporary form of
oppression of the Scheduled Castes in a more refined manner. It has been aggra
vated by the Anti-Conversion Law that the Indian states are enacting to prevent the
conversion of the Dalits to Islam or Christianity which deprives of the protection
of the Scheduled Castes Act 1950 (as amended). The lack of religious freedom in
exercising individual choice in religion is a flagrant violation of the Article 25 of
the Constitution.
The approach of the present Indian government to invoke the Hindutva will
retrench the caste system because of its conservative interpretation of the texts.
The denouncing of the treatment of the Dalit community by human rights
organizations should bring the issue to the fore and not allow the authorities to
abjure their responsibilities to humanity in general and to the mass of their own
population. It is time to overturn the prejudice that flows from literal adoption
of the creation stories of a religion that discriminates against its own and fails
to offer protection.

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92 Zia Akhtar
Notes
1. Dr B.R. Ambedkar, one of the framers of the Indian Constitution who was from the Dalit background,
defined caste as [a] “an enclosed class” and “endogamy is the only characteristic of caste” (2002).
2. The substantive and underlying principle of the caste system is Varna Dharma or in essence the
division of labour. Marc Galanter (1969) argues that “the abolition of slavery at the middle of 19
th century extended discriminatory rights to many untouchables“, including those who had access
to the courts at least “formally”. The legal system was not organized to deal with “graded inequal
ity”; the overall British approach towards caste was a “policy of interference”. This was effected
by the courts by the granting “injunctions to restrain member of particular castes from entering
temples even ones that were publicly supported and dedicated to the entire Hindu community”.
There were damages awarded for “purificatory ceremonies necessitated by the pollution caused by
the presence of the lower castes; such pollution was actionable as a trespass on the person of the
higher caste worshippers”.
3. The first President of the Indian Union Dr S. Radhakrishnan in his famous Upton lectures argued
for a non-doctrinaire approach to religion by arguing for universal suffrage. He stated (1957: 58):
“The Political Ideal of the world should not be so much a single empire with a homogenous civi
lisation but a brotherhood of free nations existing side by side in peace and order, harmony and
cooperation.”
4. This was exemplified in the support the Congress Party extended to the Khilafat movement in
India which was for the restoration of the Caliph in Turkey, a spiritual institution that represented
the central authority of the Muslim faith before it was abolished by Mustapha Kemal Atatürk
(Qureshi 1978).
5. Press Information Bureau, Government of India Ministry of Social Justice and Empowerment.
24/2/15 pib.gov.in/newsite/Pressrelease.aspx?relid=115783.
6. India: Official Dalit population exceeds 200 million, International Dalit Solidarity Network
29/5/13. https://idsn.org/india-official-dalit-population-exceeds-200-million/.
7. “According to Hindu mythology, animals are the off spring of Kasyapa by his many wives; who is
also the father of gods, demons and human beings” (Garg 1992: vol. 2, 480).
8. The Hindu texts “know” the concept of the “One” as well as “the many”. To what is One, sages
give many names -they call it Agni, Yama, Matarisvan (Rig Veda, 1.164). Bass 2004.
9. “Hindu law concepts, however, invisibly but deeply continue to influence the entire structure
of Indian civil and criminal laws, including particularly the Constitution of 1950 and remains,
therefore, an integral element of Indian and wider South Asian and globally Indic identity that no
amount of secularising law reform could ever entirely eradicate.” (Menski 2010).
10. Constitution of India. index.gov.in/sites/upload_files/npi/files/coi_part_full.pdf.
11. In Union Government v. LIC of India (1995) AIR, SC181 the Supreme Court confirmed that the
preamble was an integral part of the Constitution and served the following purposes. (a) It indi
cates the source from which the Constitution comes, viz., the people of India. (b) It contains the
enacting clause which brings into force the Constitution, which makes it an act of the people, for
the people and by the people. (c) It declares the rights and freedoms which the people of India
intended to provide to all citizens and the basic type of government and polity which was to be
established. (At paras 7–10.)
12. The term Scheduled Castes was drawn up by the British in the Government of India Act of 1935
who defined it as “such castes, races or tribes or parts of groups within castes, races or tribes which
appear to his Majesty in Council may prefer”. The Government of India (Scheduled Castes) Order

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of 1950 contained lists (or schedules) of castes eligible for certain benefits, such as running for
election or constituencies reserved for SCs.
13. Article 30 states “Right of minorities to establish and administer educational institutions (1) All
minorities, whether based on religion or language, shall have the right to establish and administer
educational institutions of their choice.”
14. It is laid down in Article 46, as a directive principle of state policy, that the “State shall promote
with special care the educational and economic interests of the weaker sections of the people and
protect them from social injustice. To promote the educational advancement of the socially and
educationally backward classes of citizens or of the Scheduled Castes and Scheduled Tribes in
matters of admission of students belonging to these categories in unaided educational institu
tions, other than the minority educational institutions referred to in clause (1) of article 30 of the
Constitution, it is proposed to amplify Article 15.”
15. This constitutional mechanism was provided by the powers under clause (1) of Article 341
of the Constitution of India The President in consultation with the Governors and Rajpramukhs
of the States concerned, is pleased to make the following namely: This Order may be called
the Constitution (Scheduled Castes) Order, 1950. Published with the Ministry of Law
Notification No. SRO 385, dated 10 August 1950, Gazette of India, Extraordinary, 1950, Part
II, Section 3, p. 163.
16. Article 44 of the Indian Constitution allows every religion to practise their own Personal Status
Laws. The Directive Principle as it is known sets out its implementation as a duty of every state in
the Indian Union. The passage of four Hindu Code Bills in the 1950s ensured a plank of legisla
tion that was earmarked towards creating the Hindu Personal Law. These laws govern the Hindu
Marriage Act, 1955, sections 7(1) and 29, the Hindu Succession Act, 1956, the Hindu Minority
and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act 1956.
17. Section 2 of this Act lays down a sanctions regime for the punishment of those who abuse the
Dalits. Section 2(iv) sets out the punishment of the public servants who commit any offence and
who shall be punishable with imprisonment which shall be for not less than one year but which
may be extended for the punishment for that offence.
18. Article 38 states “The State shall strive to promote the welfare of the people by securing and pro
tecting as effectively as it may a social order in which justice, social, economic and political, shall
inform all the institutions of the national life. The State shall, in particular, strive to minimise the
inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportuni
ties, not only amongst individuals but also amongst groups of people residing in different areas or
engaged in different vocations.”
19. Article 340 (1) of the Indian Constitution allows the President to order a commission, consisting
of such persons as he thinks, fit to investigate the conditions of socially and educationally back
ward classes within the territory of India and the difficulties under which they labour and to make
recommendations as to the steps that should be taken by the union or any state to remove such
difficulties and as to improve their condition and as to the grants that should be made, and the order
appointing such commission shall define the procedure to be followed by the commission.
20. The former Congress Prime Minister V.P. Singh on 7 August 1990 declared the government
was to implement the report by the reservation of 27 per cent posts in government services
for Other Backward classes (OBC) apart from the existing 22.5 per cent reservation of posts
for Scheduled castes and Scheduled Tribes. The declaration led to the unprecedented vio
lent agitation by BNP sympathizers which started from Delhi and later spread throughout
Northern India and some parts of Southern India. http://parliamentofindia.nic.in/is.isdebis10/

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94 Zia Akhtar
ses6/0319039301.htm; http://parliamentofindia.nic.in/is.isdebis10/ses6/0319039301.htm (both

accessed 19 March 1993).
21. In M.R. Balaji v. State of Mysore (1963) SC 649, the Supreme Court held that under no circum
stances can the allocation of reserved places under this provision exceed 50 per cent as maximum.
22. For an empirical study see Deshpande 2000.
23. The Indian Supreme Court ruled in Safai Karamchari Andolan (Sanitation workers) & Ors. v
Union of India & Ors. (2003) No. 583 of 2003 that there was a three and a half year delay in the
enforcement of the Act. In the first instance, the Act applied to the states of Andhra Pradesh, Goa,
Karnataka, Maharashta, Tripura and West Bengal and to all the Union Territories. It was expected
that the remaining states would adopt the Act subsequently by passing appropriate resolutions
under Article 252 of the Constitution. However, as noted by the National Commission for Safai
Karamcharis (a statutory body, set up under the National Commission for Safai Karamcharis Act,
1993), in its third and fourth Reports (combined) submitted to the Parliament, the 1993 Act was
not being implemented effectively. Further, the estimated number of dry latrines in the country
is 96 lakhs and the estimated number of manual scavengers identified is 577,228. It also noted
(p. 6) that manual scavengers were being employed in military engineering works, the army, public
sector undertakings, Indian Railways, etc.
24. The Protection of Civil Rights Act, 1955, sections 3–7A, define the following as offences if com
mitted on the ground of untouchability: (i) Prevention from entering public worship places, using
sacred water resources; (ii) Denial of access to any shop, public restaurant, hotel, public entertain
ment, cremation ground, etc. (iii) Refusal of admission to any hospital, dispensary, educational
institutions, etc. (iv) Refusal to sell goods and render services; (v) Molestation, causing injury,
insult, etc; and (vi) Compelling a person on the ground of untouchability to do any scavenging or
sweeping or to remove any carcass, etc.
25. Section 2 of this Act lays down a sanctions regime for the punishment of those who abuse the
Dalits. Section 2(iv) sets out the punishment of the public servants who commit any offence and
who shall be punishable with imprisonment which shall be for not less than one year but which
may be extended for the punishment for that offence.
26. Laura Dudley Jenkins argues: “The way conversion is discussed and defined in these documents
takes the convert out of the analysis. The anticonversion laws reinforce social hierarchies by por
traying certain, already socio-economically disadvantaged groups as innately weak and credulous.
Ultimately, the laws reinforce existing social categories by making it harder for people to change
their identities.” (2008: 113).
27. Nilay Saiya and Stuti Manchanda (2019), using an empirically tested hypotheses, dependent on a
time-series, negative binomial analysis of the Indian states from 2000 to 2015, argue that the “anti-
conversion laws actually serve to generate violent anti-Christian persecution by creating a culture
of vigilantism in the states where such laws exist”. 6
28. In Rev. Stainislaus v. State of Madhya Pradesh (AIR 1977 SC 908), the Supreme Court delivered
a verdict on the constitutional validity of two of the earliest pieces of anti-conversion legislation
in India: the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of
Religion Act, 1967, by validiting both pieces of legislation. Chief Justice Ray ruled that the word
“propagate” meant “to transmit or spread one’s religion by an exposition of its tenets”, but to not
include “the right to convert another person to one’s own religion” (para. 20).
29. The VHP leader Praveen Togadia has defended ghar wapsi saying, “Since the Supreme Court
has observed that Hinduism is not a religion but a way of life, ‘ghar wapsi’ cannot be termed as
unconstitutional.” (The Statesman 2015).

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30. This states “All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth
or other status.”
31. The attention of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Related Intolerance (“Special Rapporteur on Racism”) was first drawn to the situ
ation of Dalits in India in 1996 (E/CN.4/1997/71, para. 127).
32. The Optional Protocol came into force on 23 March 1976. Article 1 states:
“A State Party to the Covenant that becomes a Party to the present Protocol recognizes the
competence of the Committee to receive and consider communications from individuals sub
ject to its jurisdiction who claim to be victims of a violation by that State Party of any of the
rights set forth in the Covenant. No communication shall be received by the Committee if it
concerns a State Party to the Covenant which is not a Party to the present Protocol.”
33. UN Human Rights Comm. [HRC], Concluding Observations of the Human Rights Committee:
India 7, UN Doc. CCPR/C/79/Add.81 (4 August 1997).
34. Article 1: “In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclu
sion, restriction or preference based on race, colour, descent, or national or ethnic origin which has
the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life.” www.ohchr.org/EN/Professionalinterest/Pages/CERD.aspx
35. Concluding observations (CERD/C/63/CO/11 para. 25) and its General Recommendation 29
(2002) on descent.
36. The Commission on Human Rights, taking note of resolution 2004/17 of 12 August 2004 of the
SubCommission on the Promotion and Protection of Human Rights, decided to take this step, on
the basis of the three working papers submitted to the Sub-Commission on this topic (E/CN.4/
Sub.2/2001/16, E/CN.4/Sub.2/2003/24 and E/CN.4/Sub.2/2004/31), the comments made during
the sessions of the SubCommission and national human rights institutions, relevant organs and
agencies of the United Nations system and NGOs on the basis of information circulated by the
Special Rapporteurs.
37. Anthony J. Parel (2006) defines “swaraj” as a state of being “of individuals and nations”. Pearl
goes on to state that Gandhi was “not a philosopher and only major contribution to philosophy was
Satyagraha which was a new method of defending rights”. This was translated as “passive resist
ance as a method of securing rights by personal suffering it is the reverse of resistance to arms”.
The “securing of rights” in this way, argues the author, was complemented by the duty (dharma)
in every human being.
38. When he was Chief Minister of Gujarat Narendra Modi wrote a pamphlet that stated:
“I do not believe that they (Valmikis-bhangis ie ‘untouchables’) have been doing this job to
sustain their livelihood. Had this been so, they would not have continued with this type of work
generation after generation. At some point of time, somebody must have got the enlightenment
that it is their (Valmiki’s) duty to work for the happiness of the entire society and the gods; that
they would have to do this job bestowed upon them by gods; and that this job of cleaning up
could continue as an unintentional spiritual activity for centuries. This should have continued
generation after generation. It is impossible to believe that their ancestors did not have the
choice of adopting any other work or job.” Modi 2007.

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96 Zia Akhtar
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Scheduled Castes, Dalits and Criminalisation by ‘descent’

Author(s): Zia Akhtar

Stable URL: https://www.jstor.org/stable/10.13169/statecrime.9.1.0071

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Abstract: The Scheduled Castes/“Dalits” represent the “untouchables” in India’s constitu-

Keywords: Caste; Dalits; hate crimes; criminalization; reservations; Anti-Conversion Law;

Zia Akhtar, LLB LLM Gray’s Inn.

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State Crime 9.1 ﻿2020

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Origins of stratification in text

The Hindu religion is a heterogeneous group of faiths which manifests itself in a

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the transmission of knowledge encapsulated in the Vedic scriptures. The Hindus

found it necessary to allocate different kinds of duties to different classes of people,

State Crime 9.1 ﻿2020

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“Ought” as an ideal of the constitution

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Article 16 sets out an intention to prevent inequality of opportunity in the public

Article 17 abolishes the concept of untouchability to which the Dalit communities

Untouchability is abolished and its practice in any form is forbidden. The

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circumstances into which a Dalit is born is determined by birthright, which ensures

There is no agreed sociological or legal definition of caste, but a number of salient

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State Crime 9.1 ﻿2020

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In terms of legislation to augment this provision there have been various

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manual scavenging in the states of Gujarat, Madhya Pradesh, Maharashtra,

The Directive Principle in the Indian Constitution that is considered fundamental

Criminalization of the Dalit community

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(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

strengthening of the judicial response to caste-based atrocities so as to serve as an

State Crime 9.1 ﻿2020

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action public sector programmes. This aggravates the traditional prejudices

Anti-conversion law and racial hatred

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State Crime 9.1 ﻿2020

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Permeating a bureaucracy and savarna

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The internalization of hierarchy in Hinduism was in Ambedkar’s view because of

State Crime 9.1 ﻿2020

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conferences, publications, social media and advertizing to reconsolidate their

State Crime 9.1 2020

State Crime 9.1 2020

State Crime 9.1 2020

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State Crime 9.1 2020

State Crime 9.1 2020

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Further, he observes that the manipulation of “caste identities is contrary to con

State Crime 9.1 2020

State Crime 9.1 2020

State Crime 9.1 2020

State Crime 9.1 2020

State Crime 9.1 2020