Legal options

Systemic barriers

Print edition : February 19, 2016

During a protest in Mumbai on January 21 against the University of Hyderabad following Rohith Vemula's suicide. Photo: PUNIT PARANJPE/AFP

Comprehensive anti-discrimination legislation bringing boycott, harassment and segregation within its ambit will provide a legal recourse for persons who are at the receiving end of sustained caste-based discrimination.

A RANGE of institutions failed Rohith Vemula and his fellow students, not least among them the law. In the course of the entire ordeal with the University of Hyderabad, the range of meaningful legal remedies available to the students was woefully limited. Besides challenging the specific suspension order and gathering external support to reverse the university’s decision, what were the legal options available?

The chief piece of legislation to remedy Dalit oppression is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Act brings together a range of offences perpetrated against individuals belonging to the Scheduled Castes (S.Cs) and the Scheduled Tribes (S.Ts) by individuals who are not members of these groups. The offences, deemed atrocities under the Act, range from forcing an individual to eat an inedible substance to compelling individuals into bonded labour. It is a well-drafted piece of legislation with a seemingly strong enforcement mechanism—and yet, its impact has been negligible. Numerous reports detail how the local police sabotage its implementation, often in collusion with the perpetrators. Cases are filed under provisions of the Indian Penal Code (IPC) rather than the Act, counter-cases are filed against the victims, and the hostility extends to the level of the judiciary, which often throws out cases on technical grounds.

Substantively, the burden of proving specific elements is quite difficult. The closest provision that could have been of use in the current situation is the criminalisation of intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. And yet, as the authors Girish Agrawal and Colin Gonsalves note, courts have erected a nearly impossible barrier for Dalits to overcome by interpreting this Section to mean that its provisions are only applicable if the alleged insult or intimidation of the Dalit is done with the intent to humiliate the Dalit victim, and only if during the process of insulting or intimidating the Dalit, the upper-caste person actually uses words that have reference to the community to which the Dalit belongs. The amendment to the Act, recently passed by the Lok Sabha, does little to rectify this and merely places an additional atrocity where a person is publicly abused by his or her caste name.

The Atrocities Act could not quite cover the situation at hand—neither does it provide adequate cover when it comes to the broader systemic discrimination against Dalit students in other university spaces. Members of the Ambedkar Students’ Association (ASA) have noted how Rohith is the sixth Dalit student to have committed suicide since 2008. Individual committees to investigate past suicides found discrimination, glaring instances of insensitivity and lack of diligence towards the students concerned. Sukhdeo Thorat, former Chairman of the University Grants Commission, points out how the Andhra Pradesh High Court forwarded a set of recommendations to institutes in Hyderabad to take necessary steps. The recommendations of a committee brought out the reasons for the suicides, which included fear of failure, failure itself, very differential treatment, stigmatisation, hatred, hurt and humiliation. Dalit students entering the university through reservation are looked down upon by peers as well as the administration, he notes. Any resultant inferiority complex or introversion that leads to academic failure meets with a lack of understanding from the administration, which potentially creates a situation in which a student who cannot handle psychological pressure commits suicide.

The academic N. Sukumar notes how reservation is treated at the University of Hyderabad, and in other universities, as an imposition more than anything else, an attitude that results in universities failing to conduct remedial classes or to help students improve English skills, let alone engaging with caste hierarchy.

He further points out how the threat of stopping fellowships to Dalit students is used as a silencing tool for those who protest against caste discrimination: note again how Rohith himself was denied his fellowship stipend.

All this reveals clearly enough that Rohith’s death was not an isolated incident but an instance of systemic and structural discrimination against Dalits. Discrimination does not always take the form of single actions, motivated by individual prejudice or animus, but exists at the level of institutional conduct. The Prevention of Atrocities Act, as discussed above, is inadequate as a remedy in part because it, too, treats discrimination as an individual act, based upon intent or motive, which must be punished as such. It is clear, therefore, that any remedy must itself be systemic and structural in nature.

As recently as December 2015, an attempt was made to provide such a broad-based, comprehensive anti-discrimination law. Tarunabh Khaitan, an associate professor at the University of Oxford, has prepared an “Equality Bill”, a draft of which is being considered by the Delhi government. The text of the Bill can be accessed at https://sites.google.com/site/tarunabh/Home/discrimination-law.

Equality Bill

The Equality Bill describes itself as “comprehensive, multi-ground, anti-discrimination legislation”. It lists multiple “grounds” of protection, including that of caste. The first crucial innovation made by the Bill is in providing a detailed definition of what constitutes discrimination. Direct discrimination, as defined in the Bill, consists of acts “intended to harm, injure, humiliate, cause a detriment or adversely affect a protected group” or acts “motivated by prejudice or stereotypical assumptions” about the group. Additionally, recognising that discrimination goes beyond individual acts and motivations, the Bill defines “indirect discrimination”, a concept that has not yet been accepted by the Indian judiciary (although it has been accepted abroad). Indirect discrimination refers to policies or acts that are on the face of it, or ostensibly, neutral (for instance, they might make no actual reference to caste or gender) but have the effect of harming persons belonging to certain protected groups. For instance, the recent controversial Haryana Panchayati Raj law, which barred uneducated persons from contesting in panchayat elections (and was ultimately upheld by the Supreme Court), was found to disproportionately affect women since women have had fewer opportunities for study than men, especially in rural areas. Under the Equality Bill, a court would be obliged to take such data into account in judging the legality of any Act.

An even more striking innovation is the Bill’s acknowledgment of certain forms of discrimination that are especially prevalent—and salient—in India (and indeed, formed part of what was done to Rohith and his Dalit compatriots at the University of Hyderabad). The Bill penalises “harassment” and “boycotts”. Harassment is defined as “any communication or conduct related to a protected characteristic that has the purpose or effect of creating an intimidating, hostile or bullying environment for a person belonging to a protected group”.

The focus on “environment” is important since often it is an aggregate of individual acts that create a situation that is particularly harmful or degrading for Dalit students or workers, at a university or a workplace.

Similarly, the Bill defines “boycott” as “any overt or implicit abetment, support, encouragement, facilitation, or practice of any social, economic, political, cultural or other form of avoidance, ostracism, excommunication or exclusion that is targeted against or likely to adversely affect members of a protected group”. Of course, social, economic and cultural boycotts have a long history in India: they were the chosen form of imposing caste-based subordination, and indeed, two of Ambedkar’s civil rights movements were against boycotts—the temple entry satyagraha and the satyagraha to draw water from the village tank. In a similar vein, the Bill also penalises “segregation”. There are striking elements of both in the specific wording of the university’s suspension order, which noted how the students were permitted to be seen only in certain spaces on campus and were not to enter common spaces like the administration building in groups.

Protected characteristics

A crucial element of the persecution that Rohith and his fellow students faced was that it went beyond their caste identities: they were also targeted, for instance, for their protests against capital punishment. The discrimination they suffered thus was not just on the basis of caste but also belief. The Atrocities Act, which is squarely concerned with caste-based atrocities, is unable to provide a remedy for such an instance. The Equality Bill attempts to address issues of this nature by providing anti-discrimination protection on a range of grounds on the basis of what it terms protected characteristics. These include grounds specifically articulated in the Constitution, such as caste, sex and race, and secondary characteristics that are often used as a proxy for identity-based discrimination such as food preference and skin tone. The existence of diverse grounds is particularly important given the particularities of how discrimination may occur. With respect to students at the University of Hyderabad, for instance, the ground of “religion and belief” would be relevant as a protected characteristic in addition to caste. The definition of “religion and belief” includes any political or philosophical belief that is compatible with the objectives of the Bill. In addition, the Bill understands that individuals may be discriminated against on the basis of multiple different grounds, thus including within the definition of protected characteristics a combination of the existing grounds.

Equally crucial are the remedies that the Bill envisions. The Atrocities Act understands atrocities as crimes. While criminal law may be a desirable tool in accessing an element of justice, it is deeply inadequate for many situations concerning discrimination. The judicial process, as far as the University of Hyderabad students were concerned, was largely a forum for overturning the university’s suspension order. This by itself would not adequately address the underlying circumstances that led to the order in the first place. An effective remedy needs to have elements of restoration, and this Bill envisions the same by articulating a range of such civil remedies. The first, crucially, is for the perpetrating party to amend or abandon the discriminatory conduct and provide compensation for it. It also articulates a framework where an apology in writing is to be provided to the aggrieved persons, besides a forward-looking mechanism comprising diversification measures and training. The concern thus is not with merely punishing discrimination but with looking beyond the immediate situation to consider how lasting change can actually be effected.

A bird’s-eye view of the substantive provisions of the Bill reveals, therefore, that it takes some important steps towards instantiating the Constitution’s guarantees of equality and anti-discrimination by prescribing structural and systemic remedies for discrimination that often take the form of social and communal practices. By bringing boycott, harassment and segregation within the scope of an anti-discrimination law, the Bill targets the very practices that led to the tragedy of Rohith’s suicide and seeks to provide a legal recourse for persons at the receiving end of sustained caste-based discrimination. Many Commonwealth countries have already enacted comprehensive anti-discrimination legislation. Recent events highlight the urgency with which it is needed in India as well.

Danish Sheikh is a researcher and activist based out of Bengaluru and Delhi. Gautam Bhatia is a Delhi-based lawyer. His book Offend, Shock, or Disturb: Free Speech under the Indian Constitution was published by Oxford University Press recently.

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