Law and Poverty- End Semester

1. Gender and Property Rights/ Economic Empowerment of Women

All religious unanimous against empowerment of women-Women dependent on men as no
right to education-State does not interfere as private lives are governed by religion-No right of
divorce because of sanctification and institutionalisation of marriage-No guardianship over
own child as paternity governs a child-No right to adopt a child, no inheritance or succession
to property-Now, more rights because of Hindu Code Bill which was vehemently opposed-
Ambedkar proposed maternity leaves and the right of women to be a Karta in 1947-The latter
was opposed by the leaders-He put an end to child marriage, which was done to control
sexuality of women, by prescribing max. age for men and women-He also gave them the right
to divorce, remarry and succession-Education creates awareness about one’s subjugation and
thus, women were never educated-Savitri Bai Phule started with the movement of women’s
right to education-First women school in Pune to impart English education-She believed that
an educated woman educates an entire family-Their family was threatened, asked to deter from
their efforts and ousted from their home-British helped them with money for the adult literacy
programme.

2. Write a short note on ‘Social Exclusion.’

Ostracization is the most extreme form of exclusion-Various types of exclusion-Social
exclusion capable of incorporating all of them-The concept appeared in 1974 but was defined
in 1995- It is defined as the process by which individuals or groups are excluded wholly or
partially from the society in which they live-Participation includes the legal and material
capability to interact with people, be a part of institutions and have a sense of belongingness.
Amartya Sen gave two characteristics of Social exclusion-
1. It is multi-dimensional in the sense that it affects livelihood, dignity, equality, rights
and capabilities.
2. It has focus on socio-economic relationship between people and the processes which
bring about deprivation.

He has also talked about two types of exclusion-Active exclusion and Passive exclusion. Active
is done through policies or processes where either the State or one group consciously or
deliberately tries to exclude the other group. Eg: Apartheid. Passive is when a group gets
excluded by the State or another group with no intention to do so. Eg: In private schools’ study
elite children with no seats left for the subaltern class. The govt. school is where they receive
their education where the quality vastly differs. Thus, 2 parallel system of education exists with
no intention to exclude one group from the other.
Understanding social exclusion has constitutive importance. It is important-

1. To understand how and why exclusion brings about deprivation.

2. To understand the policies targeted to help the socially deprived.
3. To understand importance of social integration and assimilation.
Caste and patriarchy are the only institutions which have existed in the world eternally.
Brahminism as an ideology has led to the emergence of caste as it divided people into 2 groups
on the basis of the caste. The main victim of this caste hatred are the Dalits.

Dalit was a word given in 1873 by Jyotiba Phule to describe a group of people who have been
suppressed by the elite classes. They include many classes such as the former untouchables,
SC and ST. When a committee was formed to put the depressed classes up for reservation, they
divided them into 2 groups- SC and ST. Groups facing untouchability were put in SC while
those who were primitive in nature were put in ST. The SC’s and ST’s total constitute 85-87%
of the population of India. This segregation of caste has historically been the reason for the
Dalits subjugation and mass impoverishment. The British under the GOI Act, 1935 has divided
the ‘depressed classes’ under these 2 groups. Though British did not interfere in the personal
and religious matters of the native population, yet they divided them into these 2 groups in
order to give them some rights. Thus, the B changed the society by bringing in the instruments
of law and enacting legislations.

Gandhi described these classes as ‘Harijans’ but the Dalits could never bring themselves to
accept these terms. This was because-

1. They could never trust the integrity of Gandhi as he was known to use cryptic terms.
Also, ‘Harijan’ also means snake, dog or donkey and so they could not infer the
intention of the Mahatma.
2. Gandhi had always worked against the Dalits. He believed in religious integrity than
social justice. Eg: Poona Pact.
3. He pretended to work for Dalit but was an ardent supporter of the Varna system. He
believed that the system led to occupational expertise.
4. Ambedkar and not Gandhi was the representative of the Dalit people.

Article 366 defines SC as caste, races or groups mentioned under this article are SC. Similarly,
342 defines ST.

Many have tried to define what a ST is. Earlier they used to be differentiated on the basis of
religion but now it’s on the basis of culture, way of life etc. there are certain identifying features
to identify a tribe. They are simple, innocent, need-focussed and not greed-focussed, nature-
loving, self-reliant and self-dependent people. There have been 2 approached towards the STs
- isolationist (touch-me-nots, no external interference and development) and integrationist (do
not live in the best of conditions and so should be emancipated by the govt.) However,
Majumdar argues that India is a melting pot of races. There has been habituation of
communities by means of inter-caste marriages and a lot of invaders have also invaded India.
Thus, India has the most hybridized population which gives them the capability of survival.

Many scientists believe that there is nothing called a race. Aryan is not a race but a culture.
There are differenced among people not because of race but because of genetic variations,
mutations, climatic conditions, food habits etc.
In a book called ‘Sapiens’ author has argued that inter-breeding among the humans have taken
place so much so that even the homo sapiens are not pure. Thus, race is nothing but a myth.
4. Annihilation of caste.
System of caste has created 2 groups of people- haves (with legal, material and social
capability) and have nots (with none of them.) caste is social, cultural and religious institution
which wages out structural violence. Paul farmer in his research paper published in 2001 said
that structural violence is exerted systematically directly or indirectly by those who belong to
a certain social order. Johan Galton opined that social injustice and inequality lies at the core
of structural violence which happens when one group disproportionately benefits over the other
group.
Origin of caste is from the Rigveda. It is known as the varna system. Varna means colour.
Brahma is the creator of the varna system. Brahmins- mouth, kshatriya- shoulders, Vaishyas-
thighs and shudra from the feet.
The availability of rights and resources depends upon the position you hold in the varna system.
It was initially based on colour of skin but later became based on birth. It precedes birth and
continues even after death. Caste is a fundamental reality of the Indian society. Marx could
only comment on the class structure and struggle, not on the caste structure and struggle. Even
the Europeans could not fathom this social order.
The characteristics of the varna system are:
1. It is a vertical structure, not a horizontal one- thus, equality was never there. It is a
measure of social inequality. It related to the ascribed status of people.
2. Usually there are 3 ways to change your social status- conversion, marriage and
adoption. But this is not present in Hinduism as there is no mobility in the caste order.
3. The order is related to purity of blood. Higher your social position is, the purer is your
blood. Hindus maintained this with the help of endogamy. Thus, has led to a lot of
honour killing which is against dharma because marriage is a sacred institution but the
system of caste has normalized this as well.
4. Not only is there no mobility within castes but there is no mobility in the occupation
too. Now your birth decides the job that you’ll do. Brahmins do the white-collar jobs
while as we go down the rung, the lower classes do various menial jobs. You position
decides your occupation and your dignity in the society.
5. Resources and rights are monopolized by the upper caste with the lower classes left to
fend for themselves.

Usually every right has a corresponding duty. But under the system of caste, brahmins had the
most no of rights and no reciprocal duty. They had the right to education, right to knowledge,
right to interpret scriptures, right to officiate ceremonies and they also wrote scriptures where
they placed themselves at the highest order. The caste system has created a system of duties
and there is no way to change it because by granting divinity to the Rigveda we have granted
divinity to the caste system as well.

In annihilation of caste by Ambedkar he talks about how temples have been monopolized by
the brahmins. Merit is harped on for everything but religion and spirituality. Even for menial
govt jobs you have to show that you are qualified but to officiate ceremonies you only have to
be a brahmin. He suggested nationalisation of all temples with audit and an examination to
become a priest.
Every caste pays a tax except brahmins as written in the manusmriti. Even a bankrupt kin
shouldn’t tax a brahmin. Only Aurangzeb taxed all castes equally and he has been written
down as a demonic king.

Brahmins have the right to teaching and priesthood. The duty of kshatriya was to protect
boundaries of nation ad reinforce the caste hierarchy or otherwise punish the people. However,
they did not do this job of theirs as India has the longest history of colonial subjugation. They
only protected their boundaries through marriage alliance and thus Anderson was right in
saying that history of medieval India is the history of sexual alliances. Vaishyas could do
agriculture or trade or business. Vaishyas are responsible for farmer suicides and bonded labour
bcause they became money lenders and people could not pay back the debts due to high interest
rates.

The last rung is Dalits who have all duties and no rights. Statistics suggest that 47% of villages
ban marriage processions of Dalits, 26% force Dalits to stand in front of the upper castes, 19%
Dalits cannot wear white or bright coloured clothes, 105% walk barefoot and 7% no bicycles
on roads. In 27% cases they aren’t allowed to enter the police stations and out of the cases
where they are allowed, 67% of them are not registered i.e. the FIR is not filed. FIR which sets
the criminal process in motion is not filed and thus they are denied justice, the SC observed
that in 50% of the cases, the accused is acquitted. The positive side of these stats are that now
there are a no of cases where Dalits are not excluded or are not denied public facilities. This
change was brought about by the constitution of India but the time taken for this change has
been enormous.
Shudras have been denied of:

1. Right to education- only confined to first 2 classes because of the prevalence of gurukul
system-women and shudra denied of this right consciously, deliberately and
systematically-all education was Sanskrit which was not lingua franca, all in Sanskrit
for the vested interest of the 2 classes-Common people knew Pali or Prakrit.
2. Right to property- Manusmriti no right to property, will eat in only broken earthen pots-
will own jewellery made of iron-clothes out of dead body-dogs and donkeys could be
owned by them-Paul de Plessie talks about how shudra are worse than slaves, slaves
had right to education and property, they were not untouchables, not ascribed status and
could be free citizen once debt was paid.
3. Geographical exclusion- could not enter the village, only when services were required-
houses of brahmins and kshatriyas at the heart of the village while that of shudra at the
periphery-they had to walk naked and couldn’t cover themselves below knees-shudra
cannot sit or stand with an upper caste-Vradha Hari smriti says that a house impurified
by a shudra can be purified using cow dung-atria smriti prescribes various fast to make
oneself pure however all these purity go out the window when upper caste people rape
shudra women-.
4. Religion and spirituality- shudra and Bahujan have different gods and goddesses which
are not part of the mainstream culture-they are socially and culturally Hindus but not
by religion- not allowed to enter temples- Raja Ravi Verma great artist, when know
 shudra cannot enter temple made images of gods for them and was prosecuted by the
brahmin.
5. Exclusion in art and culture- excluded from rt and culture because couldn’t enter temple
where it was originally performed- Lavani in Maharashtra.

People were always fighting for political freedom which ended when power was transferred
from the Britishers to us. But the caste structure remained intact. It was people like Ambedkar
who were fighting for social freedom. He said that democracy only succeeded when social
freedom precedes political freedom, where the vice versa happens, democracy fails. Social
democracy is where there is social equality, people interact freely and no one is discriminated
against,
The consequence of caste system is that-

1. It has divided society to the max possible extent. Ambedkar believes that India is ready
for a revolution as suggested by Marz the only difference being that India has caste
structure and not class structure and our population lacks unity. He believed that India
is not even a society leave alone a nation. Each society has some minimum social bonds
which integrated a man into the society with feeling of belonginess-India lacks that.
2. Another consequence has been the long-lasting colonial subjugation of India-only one
caste was given the duty to protect India because of the occupational structure in India-
battle of Koregoan- 500 Dalits from Britisher’s defeated 20,000 peshwas-the lack of
strength at borders led to India’s colonization.
3. 2 kinds of groups- haves and have nots created because of monopolization of rights and
resources by one while the other was left to fend for themselves.

The system of caste could not be enforced by the brahmins alone and so they needed the help
of kshatriyas who vehemently enforced the caste structure with the power of their sword.
Vaishyas have been a confusing caste as they only supply money to the kind for the
maintenance of the structure and nothing else.

The structure is only enforced by people who created it. To do away with the structure, caste
based discrimination and untouchability has to go away. Culture should develop independent
of caste-delete caste-based surnames-there has to be a constant check on one’s thinking level-
inter caste marriage and sharing of food-delegitimize the religious scriptures and replace them
by constitutional morality.

4. Right to Education.
Article 28 of UN Convention on rights of child recognises the right to education and places an
obligation on the state to fulfil this obligation. It should be given free of cost by the state without
any discrimination. Article 26 of Universal declaration of human rights expects the state to
fulfil these duties. These duties are present in the FR, DPSP and fundamental duties of the state.
Article 45 of the DPSP- article 21, 45 and 51 were amended in 2002. Initially it provided for
free and compulsory education until the age of 14. Article 45 was amended to include that 0-6
years children will get education which will be the duty of the state. Article 21a was amended
to state that 0-14 years of age will get free and compulsory education. Earlier it was a derivative
right but now it is a express fundamental right. Article 51(k) was added where a duty to provide
 education for children between 6-14 years of age was imposed on the parents and guardians.
The Free and Compulsory Education Act, 2009 was enforced to bring about these amendments.
The right can find its root in 1937 committee of vernacular education where the right to free
education was conceptualised but it was not a right but a policy. But the govt argued that we
don’t have enough resources to make it a right-in so many years India spends only 1.5% of its
gdp on education, all the money that it could spend on the social empowerment of people is
spent on arms and ammunition-this shows the difference between the needs of the people and
that of the state-a lot of these priorities of people are not fulfilled under the garb of national
security-the finer issues of society have been overpowered by the manufactured narratives of
national security-Ambedkar wanted to include education and health as a fundamental right but
received strong opposition from GB Pant and Nasiruddin Ahmed citing the same reason as the
govt in 1937 did-thus Ambedkar moved them to the DPSP so that the govt always had them in
mind while framing policies-the right to education was not allowed for children till 18 years
and only till 14 years because at that time the lowest jobs regarded education till class 8th and
so it was limited to 14 years-education is the most important means of empowerment as it leads
to consciousness and critical thinking-this acts as a threat to the ruling class-state never gives
the people the right that arises out of their citizenship-people questioning the ruling class pose
a danger to them.

5. Problems with statuses/legislation. (related to right to education)

Legislations providing for 25% reservation for ‘weaker or disadvantaged section’ has not
defined the term and has left it upon the school to define the term which benefit the privileged
section. They have not formulated any programmes for the mentally or the physically
challenged. States have used the minimalistic approach where they have not increased the GDP
spending on education, or focussed on the dropouts. The focus is only on higher education but
not on primary education which is a hinderance for the society as the disadvantaged section
remains the same because only some can afford the higher education. RTE is a result of article
21A but it does not provide for any compensation in case the state violates the right. Thus, the
state does not take the right very seriously. There is no system of accountability as well. There
is no statutory mechanism as well to evaluate the enforcement of the legislation.
According to the Global United Report, 41% of the worlds population of illiterate are Indians.
Out of this population, 55% constitute people aged 14-20 years. According to NASSCOM
report 75% of India’s technical graduate are not employable, 85% of general graduates are not
employable because they don’t meet the required standards, therefore, India has a high level of
unemployment. In education, govt has opened gate for private companies saying that the public
enterprises do not have enough resources to create the infrastructure needed for education.
Earlier it was a philanthropic job but with private players it has not remained so. Kothari
committee wanted 6% of GDP to be spent on education, with half of it for primary and
secondary education. Even Majumdar Committee recommended the same but there
recommendations have never been taken seriously as state wants to disempower the masses. In
Mohini Giri v. UOI, SC held that the concept of capitation fee is violation of article 14 and 21
of Constitution. KP Unnikrishnan v. UOI held that privatisation of education and making it
into a commodity is violation of FR. But in TMA Pai v. State of Kerala- SC held that education
is not a social service or philanthropic job. It is a private sector service under article 19(1)(g)
 and thus trader can do anything he wants. This judgement throws away the idea of socialism
despite India still being a proclaimed socialist state according to the Constitution.

6. Short note on ‘Right to Food in India.’

1/4th of the world’s poor in India- 17 states doing worse than the Sub-Saharan countries known
notoriously for their hunger- Is India self-sustainable in terms of food security? Is there political
will or legal mechanism in India to honour ‘Right to food?’- ICESCR: Everyone has a right to
have a dignified life for oneself and their family, Right to food is a significant entitlement,
Right to food is a fundamental freedom from hunger and starvation, Human dignity cannot be
realised without a right to food- General comment 12 of the ICESCR Committee says that
every neighbour country should comply with the rights, duties and obligation mentioned in the
ICESCR- Right to food is when a person has physical and economic access to food and the
means available to access food should be looked from qualitative and quantitative terms-
Article 12 of International Convention on Child Rights says that state parties should recognize
right of child to highest standards of health and shall take appropriate measures to combat
disease and provide appropriate, nutritious food, clean water and health care- Thus, clean water
and nutritious food are linked with a healthy life- CEDAW: Right to healthy, nutritious food
for women, especially pregnant and lactating women- These 2 conventions providing right to
children and women cannot be isolated from each other and have to be read together- 1.5% of
GDP used for health projects and 67% of it to cure water-borne disease- Right to food not a
direct fundamental right but a derivative right under Article 21 as also provided in the Food
Security Act, 2013- According to the act, food is any non-hazardous substance of good quality
that can be eaten or drunk with dignity and provides nourishment which excludes preservatives,
additives etc. In PDS and Fair Price Shops, rotten grains are provided to people BPL and so
the word ‘dignity’ has been used- Right to food is assured physical, economic and social access
(it should not be contained by social structure or social discrimination) to food which is
culturally appropriate, diverse and nutritious for all people of the country (no particular group
is entitled to food and the other is not)- Chameli Singh v. State of UP: Right to life includes
right to food, PUCL v. UOI- SC appointed Food Commissioner of India who had to follow the
orders given by the court- Most important impediment in food security has been the failure to
implement land reforms- Land reforms are in place but the govt. has dishonest intentions to
implement it- Most farmers are either landless or have such small holdings that cost of
production rises and it is expensive to produce food- Green Revolution could have been a huge
solution to the hunger and starvation of people but even here, the govt. did not expand it beyond
a few states- These were experiment states but even after their huge success govt. did not
expand it to other states, huge subsidies and fertilizers were given to farmers of only some
states- Over the past 6 decades, 22 million farmers have left agriculture as it is not economically
viable and this has aggravated the problem of food security- The population burst worsens the
problem- Agriculture is still dependent on monsoon- 75% lands depend on monsoon for
irrigation while 25% have irrigation facilities- In some states, water resources have been
privatized and so farmer has to buy them in order to irrigate his land- This makes it difficult
for farmers to sustain on agriculture- In Europe, direct subsidies are given to farmers while in
India it is given to MNC’s who produce seeds- Govt. expenditure in agriculture has decreased
from 3.4% to 1.9%, agriculture growth has come down from 6% to 2.5%- Agriculture has
thereby been neglected- Govt. argues that food grains should be purchased from the
international markets as their cost of production is cheaper and so their cost itself is cheap too
but that would lead to unemployment of a high no. of people as 69% of the population is
directly or indirectly depended on agriculture.