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The language that fosters social change

Caste bias and prejudice runs deep in India. But when court judgments display such conscious or unconscious biases they confer legitimacy on an institution we are trying to uproot, says Rakesh Shukla

In a recent July judgment pertaining to the working conditions of sewerage workers and the high incidence of deaths among them, the Supreme Court expressed anguish over criticism that was levelled when the institution spoke for the poor and have-nots. The National Campaign for Dignity and Rights of Sewerage and Allied Workers filed a public interest litigation (PIL) in the Delhi High Court. The Delhi Jal Board, rather than implementing the excellent directions given by the High Court pertaining to the provision of safety equipment, medical treatment and compensation for death and injury, appealed to the apex court and questioned the maintainability of the PIL, calling it a usurpation of legislative power. 

The anguish was articulated in these terms: “If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the Chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil?” The sentiments expressed are unexceptionable, but the word Chamar does focus attention on the use of pejorative caste terms in the public domain.

The Delhi government had been issuing certificates specifying the caste as ‘Valmiki community’ for the past 10 years. In May 2011, the government started using the term ‘Chura’ to specify the caste, while issuing certificates. Members of the Valmiki community staged a protest at Rajghat on July 15 stating that the term was derogatory to their community. The certificates were needed at the time of school admissions. The community found that children are often told in schools that they don’t deserve to be educated as they belong to the Chura caste. Some people refused to take the certificate, asserting that it was an issue of basic respect and equality. In view of the protests, the Delhi government took the decision to stop using the term in caste certificates.

The English dailies reported the decision thus: ‘Delhi government relents, ‘Chura’ dropped from caste papers’. This reflects the largely upper-caste composition of journalists. The headline assumes that governments, newspapers, courts and other public institutions have a right to use pejorative caste terms and, in the present case, a concession had been generously given to the Valmiki community. It is pertinent to note that the community prefers to use the term ‘Valmiki’. Similarly, the association or union that submitted the petition on unsafe working conditions calls itself the National Campaign for the Dignity and Rights of Sewerage and Allied Workers, eschewing the use of caste terms to describe people doing work of this nature.

It would be interesting to explore the rationale offered and the caste of individuals who took the decision, after 10 years, of switching from using the term ‘Chura’ to ‘Valmiki’. In colloquial usage, the term used by the court and the switched term go together, viz ‘Chura-Chamar’. The deep roots of caste in Indian society need no elaboration. Modernity, IT, Silicon Valley, globalisation, I-pods seem hardly to make a dent, as reflected at the time of ‘finding a match’ for modern boys and girls. Even conversion to religions which do not subscribe to the varna system does not appear to eliminate caste. The demand for eligibility for reservations by dalit Christians and dalit Buddhists due to continuing social and economic disabilities is a live issue, presently pending in the courts as well as before Parliament. The issue of caste and the Indian psyche remains uncharted territory.

Judgments in cases pertaining to anti-discriminatory laws, like the Protection of Civil Rights Act, 1955 (PCRA) and the SC/ST (Prevention) of Atrocities Act, 1989 (SC/ST Atrocities Act), offer some pointers. It can be safely assumed that the judge, well aware of dealing with anti-discrimination cases, is trying his/her best at the rational and conscious level to be free from caste bias and prejudice.

The Madhya Pradesh High Court had occasion to deal with interpretation of the PCRA in two criminal cases against an upper-caste accused. Phulsingh, a Lodhi Thakur and ex-malgujar, had been taking begar from Balla who was a Chamar. Phulsingh had got Balla’s house demolished and abducted his wife for five days. In addition, Phulsingh threatened to run Balla over with his tractor and kill him. Balla reported the matter to the police and, as he was returning, Phulsingh shouted at him: “Chamra, mere virudh report kyon ki? Main tumse manhani ke 5,000 rupaye loonga (“You Chamar, why did you make a report against me? I will take Rs 5,000 from you for defamation)”.

In the second case, Phulsingh had a land dispute with Parsadi, also a Chamar by caste. Phulsingh threatened and abused Parsadi, saying: “Chamra, bhonsdike jagah chod dena nahi to goli maar doonga, (You Chamar, ****** leave the place otherwise I will shoot you dead)”. Phulsingh also stopped Parsadi’s wife, who was passing along the road in front of his house, and said to her: “Yahan se chamriya nikli to lat marenge. Tere bap ka rasta nahin hai,” (“You Chamariya, if you pass this way I will kick you. It is not your father’s road)”.

Two separate cases were registered against Phulsingh -- one with regard to the incident involving Balla and the other with respect to Parsadi and his wife, on grounds of insulting and on grounds of untouchability under Section 7(d) of the PCRA.

In the 1991 judgment, the High Court, in deciding whether Phulsingh had committed an offence, evolved two tests to determine whether an insult fell within the ambit of Section 7(d) of the PCRA. The first test, as formulated by the Madhya Pradesh High Court, goes as follows: “The question is, what is the test to determine whether the insult was or was not ‘on the ground of untouchability’? It is possible in my view to conceive of a test. The test is to ask the question whether the insult would have taken place irrespective of the fact that the victim was or was not a member of a scheduled caste. If yes, the insult was insult simpliciter outside the ambit of Clause (d). On the other hand, if the insult had taken place only because the victim was a member of a scheduled caste and it would not have taken place if he had been of higher caste, then the insult was an insult on grounds of untouchability.” The court thus laid down that even casteist abuse hurled at a member of the scheduled caste may not amount to an insult on grounds of ‘untouchability’ if there are other issues involved between the parties.

The second test formulated by the court was that if the insult was part of a personal quarrel between a member of a higher caste and a member of a scheduled caste, then the insult would not be on grounds of untouchability. Only insults in the absence of a quarrel would fall within the ambit of the offence. The formulation of the High Court is indicative of the perspective brought to bear: “Another rough and ready test, though not very infallible, would be to ask the question whether the insult was part of a personal quarrel which took place between a person of higher caste and a member of the scheduled caste; or was the insult offered in a cool and studied manner in the absence of any quarrel. In the first situation, the insult would most likely be insult simpliciter while in the second situation it would be insult on grounds of untouchability.”

Yet, the object of the PCRA, which was originally enacted as the Untouchability Offences Act, 1955 till its change to the present nomenclature in 1976, is to punish the preaching and practise of untouchability. The legislation has been enacted to concretise and make real the abolition of untouchability enshrined in Article 17 of the Constitution.

It is pertinent to note that, as in the present case, generally quarrels which form the backdrop of casteist abuse, insults and humiliations are, in fact, themselves rooted in the caste location of the individuals concerned. They are not ‘personal’ quarrels between equals. The fact of Phulsingh being a Lodhi Thakur and Balla and Parsadi belonging to a scheduled caste community can obviously not be disassociated from the issues of begar, abduction of wife, or displacement from land which are at the root of what the court chooses to see as a ‘personal quarrel’ taking the insult outside the ambit of the Act. In fact, the court goes on to make the rather puzzling observation: “Now, calling a Chamar a Chamarmay be insulting him but it would not be an insult on the ground of untouchability.”

Applying the two tests evolved as general principles to interpret the legislation, the court held that as both Balla and Parsadi had a personal quarrel with Phulsingh the insults were ‘insults simpliciter’, and not on grounds of untouchability. That it was incidental that Balla, Parsadi and his wife belonged to a scheduled caste community and that the insult would have been offered “no matter what caste Balla belonged to”. The judgment held that regardless of the onus put by Section 12 of the PCRA, that the court must presume that an act was on grounds of untouchability, regarding the facts and circumstances of the two cases no offence was made out under the Act. The High Court acquitted Phulsingh in both criminal cases with respect to Balla as well as Parsadi and his wife.

The Bombay High Court had occasion to deal with an interpretation of the SC/ST Atrocities Act. In May 2005, the chairman of the Industrial Development Bank of India (IDBI), V P Shetty, was arrested on a complaint by the IDBI general manager Bhaskar Ramteke, under the SC/ST Atrocities Act. The chairman is alleged to have hurled a volley of casteist expletives at the general manager. The Bombay High Court held that the offence of insulting or humiliating a member of the scheduled caste in “any place within public view” was not established as the incident took place in a private room and quashed the FIR under the Atrocities Act. Contrary to the image of Ramteke and Shetty having a get-together in the latter’s drawing room, conjured up by the phrase ‘private room’, the incident took place in the chairman’s office at the IDBI premises at the World Trade Centre. Ramteke had gone to meet Shetty in connection with official work pertaining to re-adjustment of the SC/ST backlog ahead of the merger of IDBI Bank and IDBI Ltd.

Unfortunately, caste prejudice is not confined to isolated individuals like the trial judge in Rajasthan who acquitted the accused in the infamous gang-rape of Bhanwari Devi. Bhanwari Devi was a sathin, a village-level worker in the Women’s Development Programme run by the Rajasthan government. She had joined the programme in 1985 and was a relentless campaigner against the practice of child marriage. Bhanwari Devi had successfully prevented the marriage of Ram Karan Gujar’s one-year-old daughter. On September 22, 1992, she was gang-raped by five men including Ram Karan Gujar. The judgment, delivered by the district and sessions judge, Jaipur, on November 15, 1995, declared that, “since the accused are upper-caste men, the rape could not have taken place because Bhanwari was from a lower caste”. 

Even when not so apparent and articulated as in the case of the trial judge in Rajasthan, caste bias and prejudice run deep, following subterranean pathways even when not consciously visible. Judgments using words or phrases pertaining to caste would do well to take into account the tremendous legitimacy and endorsement conferred on pejorative terms by the fact of them having been used by a court of law. Similarly, governments issuing caste certificates could consult with the communities concerned prior to deciding on a word or phrase to be used in official documents. Interrogating one’s own background, examining conscious and unconscious caste biases and prejudices, seems necessary for all of us in India including policymakers, judges and journalists.

(Rakesh Shukla is a Supreme Court lawyer)

Infochange News & Features, August 2011

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