– Priyam Mittal
Introduction
In December last year, a two-judge bench of the Rajasthan High Court (“HC”) took suo moto cognisance of the caste-based allocation of jobs in prisons after The Wire published an investigative piece on such practices throughout India’s prisons.[1] The HC directed the Additional Advocate General to undertake a complete overhaul of the prisons and eradicate the system of such segregation.[2] Consequently, on 2nd February, the Rajasthan government repealed several provisions of its 70-year old prison manual that authorised these problematic practices.[3]
The caste system in India is a hierarchical and hereditary system ranking the Hindu populace into four categories – Brahmins, Kshatriyas, Vaishyas and the Shudras, in that respective order.[4] The system offers little social mobility, and the caste ascribed at birth dictates all aspects of one’s social life.[5] Therefore, particular jobs have been historically linked to specific caste groups, based on notions of “purity” and “untouchability”.[6] While the caste system has reduced in prominence, discrimination in jobs, especially imposing menial vocations on lower castes, still lingers, even in prisons. This is despite the fact that both caste-based crimes and untouchability have statutorily been prohibited.[7]
This article is divided into four parts. First, I lay down the legal framework within which the caste-based segregation of prison jobs operates and how it is problematic. Second, I analyse the constitutional invalidity of such oppression of the lower-caste inmates. Third, I scrutinise the inadequacy of the Prevention of Atrocities Act in such a situation, explicitly enacted to put an end to discriminatory caste-based practices. Finally, I apply the Conflict Triangle theory to show why such occupational segregation under the caste system is still so prominent, even after continued social and legislative efforts.
Oppressive Prison Rules
The Prisons Act, 1894[8] is pre-constitutional legislation containing specific provisions concerning prisons’ functioning and the regulation of prisoners’ actions. Since prisons are a State list subject, the Prisons Act guides respective state governments to formulate their respective prison manual rules.[9]
§59(12) of the Prisons Act vests individual state governments with the power to make rules concerning “employment, instruction and control of convicts”.[10] Accordingly, the Rajasthan Prison Manual prescribed that sweepers be chosen from those who have customarily practised sweeping in their district and prevented any else from being compelled to clean.[11] Similarly, only Brahmins and other “sufficiently high caste Hindu prisoners” were eligible to be appointed as cooks.[12] The recent amendment removes such castes’ mention and specifically includes a provision that prohibits tradesmen from being chosen on communal or caste lines.[13]
While Rajasthan has managed to take cognisance of this caste-bias in prisons, similar provisions continue without amendment in several states like, West Bengal, Uttar Pradesh, and Punjab.[14] The “Mehtar” and “Chandal” castes, communities historically associated with manual scavenging and cleaning,[15] have been explicitly allocated tasks of sweeping and cleaning work even in the reformed Rajasthan manual.[16] Additionally, the provision that hospital attendants must belong to a “good caste” also persists in the Rajasthan Manual.[17]
It is especially appalling that manual scavenging continues to be this rampant in prisons. The Prison Reforms Committee in 1983 recommended replacing open basket latrines with flush type toilets and setting up laundries instead of manual washing of all inmates’ clothes by select castes.[18] The SC in the 1997 historic judgement of Rama Murthy laid down guidelines to implement the recommendations as given by the Prison Reforms Committee, to improve the conditions of accommodation and other basic amenities in prisons.[19]
Additionally, the apex court has also strongly condemned the practice of manual scavenging and sent out directives for the protection and rehabilitation of those involved in such high-risk jobs.[20] In pursuance of the same, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013[21] was enacted to bring such hazardous activities to an end. Even then, the reality is starkly different from the law on paper, and manual scavenging continues to be forced upon lower caste inmates.
Furthermore, another abhorrent practice has been observed in the Uttar Pradesh Prison Manual. Rule 719 of which, includes the phrase “reasonable respect to caste prejudices of prisoners” and consequently offers protection to upper caste prisoners subjugating other lower caste inmates. This has translated into extreme harassment and humiliation by upper caste inmates, as indicated by a Dalit advocate and undertrial’s lived experiences.[22] Further, even without provisions sanctioning such segregation, several reports account for the inhumane treatment meted out to prisoners solely because of their caste.[23]
A Violation of the Constitution
Jurisprudence over the years has evolved to recognise certain constitutional rights of prisoners. Courts have directed for reform to be carried out, both in terms of prisons’ administration and the improvement of prisoners’ conditions.[24] Inmates are entitled to most fundamental rights under Part III of the Constitution, except free movement and occupation.[25] Moreover, the Constitution categorically prohibits discrimination between citizens on caste and untouchability under Art. 15(1) and Art. 17 respectively.[26] Further, the scope of the right to life and liberty under Art. 21 has been significantly expanded to include the right to live with dignity and[27] not mere animal existence.[28]
Additionally, the Mandela Rules[29] prescribe the minimum standard for the treatment of prisoners. Rule 1 calls for all prisoners to be treated with “dignity” and not be subject to “cruel, inhumane or degrading treatment or punishment”.[30] Rule 2 stipulates that prison rules be applied impartially, and no prisoner should be discriminated against on cosmetic differences like “race, colour, sex, language, religion…birth or any other status”.[31] The SC has held that all international conventions not inconsistent with fundamental rights under Part III must be relied upon to enlarge their meaning, and further constitutional norms.[32]
It can be seen that both the Indian Constitution and international standards expressly prohibit such discrimination and segregation based on the caste of prisoners. NCRB Report of 2015 shows that prisoners from SC/STs form a sizeable population of 34% inside jails.[33] Lower caste incarcerators represent an extraordinary group of individuals, for they must both be guaranteed respectable living conditions and be shielded from caste-based discrimination. Still, the needs and concerns of these lower castes continue to be grossly neglected.
Gaps in the Prevention of Atrocities Act
Today, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“POA Act”) is the primary legislation seeking to prevent the ongoing discrimination and atrocities against SC and ST populace.[34] §3 of the POA Act exhaustively lists down a host of offences or “atrocities” against SCs and STs criminalised under the statute.[35] The Cambridge dictionary defines an “atrocity” as an “extremely, cruel, violent or shocking act”.[36] Moreover, in the context of international law, “atrocity” crimes are the most serious crimes against human kind that affect the core dignity of human beings.[37] As described above, the caste-based segregation of jobs and the compulsion on lower caste prisoners to necessarily engage in menial, unhygienic jobs is by all standards an “atrocity”. It directly infringes upon the human dignity of SCs and STs by compelling them to perform degrading tasks.
Lawmakers remain conveniently ignorant of this casteist allocation of jobs, rampant in the incarceration systems. The casteism finds no mention in the POA Act. While manual scavenging does appear in the list of atrocities, it is just one of the several inflicted upon the inmates and does not sufficiently take cognisance of their troubles.[38]
Aggrieved prisoners can only take a recourse under §3(1)(x)[39], if the courts allow a liberal interpretation of the same to aid them. The provision prohibits intentionally “insulting or intimidating with intent to humiliate a member of an SC/ST in any place within public view”.[40] Unfortunately, courts have repeatedly opted for a restrictive approach while interpreting the said provision. Occurrences within the four walls of a building and individuals having close association with the complainant are excluded from the scope of public view.[41] It is thus highly improbable for humiliation inside prisons to come within the purview of this section.
Moreover, the lower sub-castes within the SCs/STs are often mistreated by higher sub-castes, but a violator under the POA Act must necessarily belong to a non-SC/ST caste.[42] This leaves several perpetrators belonging to the SC/ST community scot-free.
The Conflict Triangle
Caste-based segregation in prison tasks continues to be rampant despite having several preventive measures in place. This stems from the inadequate nature of the measures accommodated. This hint at a more prominent force operating in the backdrop which gives legitimacy to such discrimination. Johan Galtung, a Norwegian sociologist, propagated the theory of the Conflict Triangle. It describes various kinds of “violence”, which consolidate into a “violent” social system, imagined as a triangle.[43] It provides valuable insight into the processes that continue to fuel social exclusion in prisons even after continued legislative and social action. Violence is defined as a condition where individuals are affected so that their “potential realisations or capabilities are not matched by actual realisations”, even when the same could be avoided.[44] This is a departure from the general understanding of violence, which is physical hurt.[45] It is interpreted as a broad term that encompasses several types of violence within it.[46] Here, we focus on direct, structural and cultural violence.
Direct and structural violence are differentiated based on the presence of an actor who causes violence.[47] Direct violence is caused by a specific individual, while violent actions cannot be traced back to anyone in structural violence.[48] Therefore, structural violence can be looked at as social injustice built into the system and is characterised by an unequal distribution of resources.[49] More resourceful actors are given an elevated status that leads to a ranking system[50], which further adds to violence and forms a vicious cycle. Direct violence is apparent and easier to speak out against.[51] However, structural violence is silent and static[52], which makes it more normative.
The caste system is responsible for perpetrating structural violence against the lower castes, which manifests itself in forms like segregation in prison jobs. Upper castes assert caste dominance and their relative superiority in the hierarchy through practising untouchability and humiliation. It represents institutionalised violence against the lower castes that prevents social upliftment and the full realisation of their capabilities.
This is further fuelled by cultural violence. It forms the Conflict Triangle base and represents regressive social norms so profoundly rooted for so long that they make injustice seem acceptable.[53] Cultural violence includes several ideological aspects – such as religion, Art, language – that condone, or in some cases, even validate direct and structural violence.[54] These are specific elements that act like an internalising force, the consequence of which is the justification of violence. The moral colour systemically shifts from red(wrong) to green(right) or at least yellow(acceptable).[55] Any attempts to overthrow the status quo is met with great displeasure, and the very victims of violence are blamed for causing violence.[56]
The caste system’s deep-seated existence and the resulting subjugation has been normalised by years of cultural conditioning, and inhumane vocations like manual scavenging almost seem acceptable and destined. The widespread presence of derogatory and problematic phrases like “Mehtar”, “chandak”, “customary sweeper”, or “respect for caste prejudices” in laws adds salt to injury. The victims bear with the violence inflicted on them at the hands of the powerful, whether it is psychological trauma, humiliation, alienation or more perceptible diseases. The lower castes are prevented from revolting because they are seen as disturbances to the social order. Any feeble attempt to go against this structure is snubbed by baseless narratives like there being no alternative available to ensure law and order in the jails.[57] They are seen as lazy, incapable of doing anything else, and that the upper castes are benevolent enough to bear with them despite their low status.[58]
Lower caste prisoners face aggravated suffering, for they are seen as outcasts who have wronged the society, as well as the underdogs of the caste system. The intersection of two sets of cultural elements gives legitimacy to the structural violence inflicted on them.
Conclusion
While the abhorrent vices of the caste system have been expansively expounded on by scholars, express provisions in the jail manuals that legitimise segregation show how it reflects in India’s incarceration systems. The Prisons Act, 1894 and associated manuals are a colonial hangover that contain irrelevant, archaic provisions, all adding to the oppression of the lower caste inmates. The model prison manual released by BPRD eliminates any such casteist discrimination in work allocation and ensures compliance with international standards.[59] However, its implementation is limited, and most states still rely on their respective manuals to impose their prejudices on inmates. While aimed at being a welfare legislation, the POA Act does little to prevent the commission of such atrocities in the first place. Its provisions are inadequate and restrictively interpreted, resulting in meagre conviction rates.[60]
The recent amendment to the prison statutes by the Rajasthan Government comes as a welcome step towards progressive living, but mere legislative action cannot put an end to the caste biases in prisons. Even in states where some discriminatory provisions have been done away with, the same does not materialise in reality.[61] The upper caste tyranny exists to oppress and subjugate those lower in the pecking order and deny them their individuality and dignity. The roots of the caste system need to be weeded out for this institutionalised violence to be brought to an end. Till then, the lower caste inmates will continue to be marginalised and further pushed to the fringes.
The author, Priyam Mittal, is a second year law student at The WB National University of Juridical Sciences (NUJS), Kolkata.
[1] Sukanya Shantha, From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System, December 10, 2020, available at https://thewire.in/caste/india-prisons-caste-labour-segregation (Last visited on February 25, 2020); See The Indian Express, Rajasthan govt amends rules to do away with caste-based labour, February 16, 2021, available at https://indianexpress.com/article/india/rajasthan-govt-amends-rules-to-do-away-with-caste-based-labour-7190474/(Last visited on February 25, 2021).
[2] Indrajeet Singh v. State of Rajasthan, D.B. Civil Writ Petition No.17019/2018; Smt. Bhanwri v. State of Rajasthan, D.B. Civil Writ Petition No.98/2019, 3-4.
[3] Rajasthan Prisons (Amendment) Rules, 2021, available at https://www.home.rajasthan.gov.in/content/dam/homeportal/jaildepartment/pdf/Rules-Act-Notification-Amendments/scan4551.pdf; Sparsh Upadhyay, Rajasthan Govt. Amends ‘Rajasthan Prisons Rules 1951’ Removing Provisions Allowing Caste/Religion-Based Allocation Of Labour In Jails
February 15, 2021, available at https://www.livelaw.in/news-updates/rajasthan-govt-amends-rajasthan-prisons-rules-1951-removing-provisions-allowing-castereligion-based-allocation-of-labour-in-jails-169895 (Last visited on May 1, 2021); Sukanya Shantha, Rajasthan HC Takes Suo Motu Note of the Wire’s Prison Report, Orders ‘Overhaul’ of Prison Manual, December 18, 2020, available at https://thewire.in/law/caste-prison-rajasthan-high-court-prison-manual-suo-motu (Last visited on February 25, 2021).
[4] A Sana, The Caste System in India and its Consequences, 13(3/4) International Journal of Sociology and Social Policy 3(1993).
[5] Id.
[6] Id., 9.
[7] Protection of Civil Rights Act, 1955; The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
[8] The Prisons Act, 1894.
[9] The Constitution of India, 1950, Art. 246, List II – State List (4).
[10] The Prisons Act, 1894, §59(12).
[11] The Rajasthan Prisons Rules, 1951, Part 10, §1, Rule 13.
[12] The Rajasthan Prisons Rules, 1951, Part 9, §2, Rule 67.
[13] The Indian Express, Rajasthan govt amends rules to do away with caste-based labour, February 16, 2021, available at https://indianexpress.com/article/india/rajasthan-govt-amends-rules-to-do-away-with-caste-based-labour-7190474/ (Last visited on February 25, 2021).
[14] The West Bengal Jail Code, Rules for the Superintendence and Management of Jails in West Bengal, (Volume I Part I), 1967, Rule 793; The Rajasthan Prisons Rules, 1951, Part 10, §1, Rule 19, Part 18, §1, Rule 7; Punjab Jail Manual, 1996, Rule 636; UP Jail Manual, 1984, Chapter XXVII, A, Rule 719; Sukanya Shantha, From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System, December 10, 2020, available at https://thewire.in/caste/india-prisons-caste-labour-segregation (Last visited on February 25, 2020).
[15] Sukanya Shantha, From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System, December 10, 2020, available at https://thewire.in/caste/india-prisons-caste-labour-segregation (Last visited on February 25, 2020).
[16] The West Bengal Jail Code, Rules for the Superintendence and Management of Jails in West Bengal, (Volume I Part I), 1967, Rule 793.
[17] The Rajasthan Prisons Rules, 1951, Part 9, §1, Rule 13.
[18] Justice A.N. Mulla Committee, Report of the All India Committee on Jail Reforms 1980-83, Rec 37, 73, 74 & 80 (1983).
[19] Rama Murthy v. State of Karnataka (1997) 2 SCC 642, ¶¶¶ 19, 35 & 49.
[20] Safai Karamchari Andolan v. Union of India, Civil Writ Petition No. 583/2002, ¶14; Delhi Jal Board v. National Campaign Etc. & Ors, (Civil), 2011 (8) SCC 568, ¶8.
[21] Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.
[22] National Dalit Movement for Justice, Criminal Justice in the Shadow of Caste Study On Discrimination Against Dalit And Adivasi Prisoners & Victims Of Police Excesses 69(2018); Business Standard, Gujarat: NHRC issues notice over victimization of Dalit prisoners in Amreli district jail, January 6, 2017, available at https://www.business-standard.com/article/news-ani/gujarat-nhrc-issues-notice-over-victimization-of-dalit-prisoners-in-amreli-district-jail-117010601158_1.html (Last visited on March 21, 2021); Shreehari Paliath, Seven in 10 Indian prisoners are awaiting trial – one in three jail inmates is Dalit or Adivasi, September 9, 2020, available at https://scroll.in/article/972458/seven-in-10-indian-prisoners-are-awaiting-trial-one-in-three-jail-inmates-is-dalit-or-adivasi (Last visited on March 21, 2021).
[23] Shanmughasundaram J, Inmates segregated on caste basis in Tamil Nadu jail: Ex-prisoners, September 25, 2018, available at https://timesofindia.indiatimes.com/city/chennai/within-palayamkottai-jail-caste-walls-divide-convicts/articleshow/65941644.cms (Last visited on February 25, 2021); Saurav Dutta, How Caste plays out in the Criminal Justice System, January 5, 2019, available at https://www.newsclick.in/how-caste-plays-out-criminal-justice-system (Last visited on February 25, 2021).
[24] Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 SCR (3) 532; Sheela Barse v. Union of India, JT 1986 136.
[25] Charles Sobhraj v. Superintendent, Central Jail, 1979 SCR (1) 512, ¶515; D.B.M. Patnaik v. State of Andhra Pradesh, 1975 SCR (2) 24, ¶6.
[26] The Constitution of India, 1950, Art. 15(1) & 16.
[27] Maneka Gandhi v. Union of India, 1978 SCR (2) 621; Gian Kaur v. State of Punjab, 1996 SCC (2) 648; Francis Coralie v. Union Territory of Delhi; 1981 SCR (2) 516; Bandhua Mukti Morcha v. Union of India, 1984 SCR (2) 67.
[28] Kharak Singh v. State of U.P., 1964 SCR (1) 332, ¶345-346.
[29] UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), Note by the Secretariat, A/C.3/70/L.3 (September 29, 2015).
[30] Id, Rule 1.
[31] Id, Rule 2.
[32] National Legal Services Authority v. Union of India, 2014 (5) SCC 438, ¶53.
[33] National Crime Records Bureau, Prison Statistics India 2015 pgs. 95-98, Chart 5.3 (2016); Dilip Mandal, Another data mishap? NCRB’s new prisons report has no caste, religion breakdown of inmates, April 4, 2019, available at https://theprint.in/opinion/another-data-mishap-ncrbs-new-prisons-report-has-no-caste-religion-breakdown-of-inmates/216604/ (Last visited on February 24, 2021).
[34] The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Preamble.
[35] Id, §3.
[36] Cambridge Dictionary, Meaning of atrocity in English, available at https://dictionary.cambridge.org/dictionary/english/atrocity (Last visited on March 21, 2021).
[37] United Nations, Framework of Analysis for Atrocity Crimes: A tool for prevention 8(2014); David Scheffer, Genocide and Atrocity Crimes, 1(3) Genocide Studies and Prevention, An International Journal, 238-39(2006); see also Malcolm N. Shaw, International Law 1195-1996(6th edn., 2008).
[38] The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, §3(1)(j); The Wire Staff, One in Every Three Under-Trial Prisoners in India Is Either SC or ST: Study, January 20, 2019, available at https://thewire.in/rights/one-in-every-three-under-trial-prisoners-in-india-is-either-sc-or-st-study (Last visited on May 5, 2021); Jahnavi Sen, Three-Quarters of Death Row Prisoners are from Lower Castes or Religious Minorities
A socio-economic profile of death row prisoners shows that a disproportionate section come from economically vulnerable, lower caste and religious minority families, May 6, 2016, available at https://thewire.in/law/three-quarters-of-death-row-prisoners-are-from-lower-castes-or-religious-minorities, (Last visited on May 5, 2021); Teesta Setalvad, Women prisoners recount Jail Horror Stories: Rape and torture common in jails, January 24, 2019, available at https://cjp.org.in/women-prisoners-recount-jail-horror-stories/ (Last visited on May 5, 2021); G Pramod Kumar, Ram Singh’s death: Rape and ugly sexual violence in Indian jails, March 12, 2013, available at https://www.firstpost.com/india/ram-singhs-death-rape-and-ugly-sexual-violence-in-indian-jails-657071.html (Last visited on May 5, 2021); Human Rights Watch, Prison Conditions in India 32(1991) available at https://www.hrw.org/sites/default/files/reports/INDIA914.pdf .
[39] Id, §3(1)(x).
[40] Id.
[41] Hitesh Verma v. The State of Uttarakhand , Criminal Special Leave Petition No. 3585/2020, ¶15; Ashok Kumar Makkar, Atrocities within ‘public view’ under SC/ST (prevention of atrocities) act: A critical analysis, 4(1) International Journal of Law 10-11(2018); Rashmi Venkateshan, Humiliation outside ‘public view’: A verdict puts focus on a grave flaw in the SC/ST Act, November 19, 2020, available at https://scroll.in/article/978462/humiliation-outside-public-view-a-verdict-puts-focus-on-a-grave-flaw-in-the-sc-st-act (Last visited on February 25, 2021).
[42] The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, §s 3(1), 3(2).
[43] Johan Galtung, Cultural Violence, 27 Journal of Peace and Research 294(1990).
[44] Johan Galtung, Violence, Peace and Peace Research, 6(3) Journal of Peace and Research 168(1969).
[45] Id.
[46] Id., 173.
[47] Id., 170.
[48] Id., 171.
[49] Id.
[50] Id., 176.
[51] Id., 173.
[52] Id.
[53] Galtung, supra note 44, at 291.
[54] Id.
[55] Id., 292.
[56] Id.¸ 295.
[57] Sukanya Shantha, Rajasthan HC Takes Suo Motu Note of the Wire’s Prison Report, Orders ‘Overhaul’ of Prison Manual, December 18, 2020, available at https://thewire.in/law/caste-prison-rajasthan-high-court-prison-manual-suo-motu (Last visited on February 25, 2021).
[58] Mohd. Shahid, Manual Scavenging: Issues of Caste, Culture and Violence, 45(2) Social Change 251-252 (2015).
[59] Model Prison Manual for the Superintendence and Management of Prisons in India, 2003, Rules 2.15.1, 15.22, 19.09(xxxviii), 24.02 notes (ii), 24.35.
[60] Anand Teltumbde, Why the ‘misuse’ of the SC/ST Act is nothing but a bogey, April 6, 2018, available at https://economictimes.indiatimes.com/news/politics-and-nation/why-the-misuse-of-the-sc/st-act-is-nothing-but-a-bogey/articleshow/63648662.cms?from=mdr (Last visited on February 25, 2021).
[61] Sukanya Shantha, From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System, December 10, 2020, available at https://thewire.in/caste/india-prisons-caste-labour-segregation (Last visited on February 25, 2021).
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