The practice of “untouchability,” other caste-based discrimination, violence against lower-caste men, women, and children, and other abuses outlined in this report violate numerous domestic and international laws. International human rights law imposes on governments a duty to guarantee the rights of all people without discrimination and to punish those who engage in caste-based exploitation, violence, and discrimination.
In its August 2000 resolution, the U.N. Subcommission on the Promotion and Protection of Human Rights urged governments to ensure that “appropriate legal penalties and sanctions, including criminal sanctions, are prescribed for and applied to all persons or entities within the jurisdiction of the Governments concerned who may be found to have engaged in practices of discrimination on the basis of work and descent.”
The subcommission’s working paper on work and descent-based discrimination noted a year later, “The laws are there, but there is a clear lack of will on the part of law enforcement officers to take action owing to caste prejudice on their part or deference shown to higher-caste perpetrators.”
Though constitutional guarantees and other national legislation banning caste discrimination suggest that various governments have successfully tackled caste-related violations, much of the legislation remains unenforced. Official condemnation alone has proven insufficient in many countries in abolishing caste-based abuses.
In India, for example, laws are openly flouted while state complicity in attacks on Dalit communities continues to reflect a well-documented pattern. India’s own constitutional and statutory bodies, including the National Human Rights Commission and the National Commission for Scheduled Castes and Scheduled Tribes, have repeatedly confirmed and decried the prevalence of the abuses outlined in this report. Other government authorities, however, have facilitated continued discrimination. Indeed it would be difficult to convince Dalits that, over fifty-four years after independence, the government had done anything to end the violence and discrimination that has ruled their lives. The message sent from the judiciary on caste discrimination is equally disturbing: in July 1998 in the state of Uttar Pradesh, an Allahabad High Court judge reportedly had his chambers “purified with Ganga jal,” water from the River Ganges, because it had earlier been occupied by a Dalit judge.
The state’s failure to prosecute atrocities against Dalits is well illustrated by its manipulation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Enacted in 1989, the act provides for certain stiffer punishments for abuses against members of scheduled castes and scheduled tribes when committed by non-scheduled caste or tribe members. Its enactment represented an acknowledgment on the part of the government that abuses, in their most degrading and violent forms, were still perpetrated against Dalits despite the constitutional abolition of “untouchability” four decades earlier.
The potential of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to bring about social change, however, has been hampered by police corruption and caste bias, with the result that many allegations of caste crimes are not entered in police records. Ignorance of procedures and a lack of knowledge of the act have also affected its implementation. Even when cases are registered, the absence of special courts to try them can delay prosecutions for up to three to four years. Some state governments dominated by higher castes have attempted to repeal the legislation altogether.
In 1957 the government of Sri Lanka passed the Prevention of Social Disabilities Act making it an offense to deny access to various public places to persons by reason of their caste. A 1971 amendment imposed stiffer punishments for the commission of offenses under the 1957 act. According to the U.N. Subcommission’s working paper: “Initially there were some prosecutions in the North but there was a tendency for the police not to take action against violations. In a celebrated temple-entry case, the Act was challenged as interfering with customs and ancient usages that prohibited defilement of a Hindu temple by the entry of low-caste persons. This argument was rejected by the Supreme Court and Privy Council.”
Unlike India’s constitution, Sri Lanka‘s 1978 Constitution does not provide for community-based affirmative action. It does however prohibit discrimination on the grounds of caste, including caste-based restrictions on access to shops, public restaurants, hotels, places of public entertainment, and places of worship of one’s own religion. Despite these constitutional prohibitions, serious problems remain.
Prohibitions on the denial of fundamental freedoms to Nigeria‘s Osu community are part and parcel of the country’s constitution and domestic laws. Legislation abolishing the Osu system has been in force since the 1950s, and constitutional provisions prohibit discriminatory practices and promote equal implementation of legal protections. Nigeria has also incorporated the African Charter on Human and People’s Rights into its national legislation, strengthening its commitment on paper to end discriminatory practices such as the Osu caste system. However, these laws remain largely unenforced.
According to the 1984 report of an expert to the then-U.N. Subcommission on Prevention of Discrimination and Protection of Minorities, slavery “as an institution protected by law has been genuinely abolished in Mauritania…. Nevertheless… it cannot be denied that in certain remote corners of the country over which the administration has little control certain situations of de facto slavery may still persist.” Still many human rights groups, including Human Rights Watch, have pointed to Mauritanian government inaction in enforcing its own ban on slave-like practices.
In their oral submission before the fiftieth session of the U.N. Subcommission on Prevention of Discrimination and Protection of Minorities in 1998, Anti-Slavery International stated that, “the government does not have a pro-slavery policy, but its silence and inaction on this issue allow centuries-old caste servitude to continue with impunity.” In a 1999 letter Human Rights Watch noted the following on the enforcement of laws against slavery:
The government has not taken any forceful steps to remove what it considers the “vestiges” or “after effects” (sequelles) of slavery. While the courts have upheld individual rights in a few cases, judges have failed to enforce systematically the laws abolishing slavery, in some cases returning “slaves” to their “masters” even though this relationship in theory has ceased to exist. Few lawyers are able and willing to appear in court to defend the rights of “slaves.” There is no law providing for the practice of slavery or forced labor to be an offense; while provisions in the 1980 law for compensation to be provided to slave-owners (but not slaves) have never been implemented, encouraging an attitude among “masters” that they need take no action to ensure substantive freedom for their “slaves.”
The success of legislation to combat caste discrimination in Japan may be coming to an end. To counter various forms of discrimination against the Buraku population, the Japanese government instituted the “Law on Special Measures for Dowa Projects.” This series of reform efforts had considerable success in improving housing areas for Buraku communities and increasing education and literacy rates among Buraku children. As a case in point, from 1963 to 1997, the enrolment of Buraku children in high school and public vocational schools rose from 30 percent to 92 percent, while university and junior college rates rose from 14.2 percent to 28.6 percent. With the Special Measures set to lapse in March 2002, civil rights activists in Japan worry that that progress will be halted and have urged the government to consider the need for further such legislation.
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