An extremely significant recent judgement of the Supreme Court has exposed, and discarded, the state’s encoding of caste into the law governing India’s prisons. This case is another confirmation that caste is an inescapable Indian reality, manifesting in every realm of social life, even in prisons. This judgement, running into 148 pages, is crucial not merely for its directions to do away with caste-based discrimination in prisons. But it is relevant far beyond the jurisprudence concerning Article 17 and other aspects that ought to inform judicial approaches to caste and caste-based issues.
In 1978, Jst. Krishna Iyer, had described India’s prisons in the following words: “A prison is a sound-proof planet, walled from view and visits regulated, and so, rights of prisoners are hardly visible, checking is more difficult and the official position of the repository of power inspires little credibility where the victims can be political protesters, unpopular figures, minority champions or artless folk who might fail to propitiate arrogant power of minor minions”. Almost 50 years later, even as the jurisprudence around the rights of prison inmates has developed greater rights for them, the journalist Sukanya Shantha, approached the Supreme Court with this public interest litigation highlighting the lived realities of caste oppressed sections in prisons, which she documented in a detailed article titled “From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System”
What has come to light is the systematic and meticulous manner in which caste-based segregation was enforced in prison manuals/rules of various states and in practice, as impugned in this public interest litigation. For instance, the Kerala Prison Rules 1958 and more recent ones, including the Uttar Pradesh Jail Manual, 2022 and the Rajasthan Prisons Rules, 2022, all of which, contained explicit provisions sanctioning caste discrimination in prisons, including rules for who should cook and who should sweep, caste-based division of manual labour, segregation of barracks on caste lines and blatant discrimination of prison inmates belonging to denotified tribes. The Supreme Court has declared these provisions unconstitutional, and directed the States/Union Territories to revise their Prison Manuals/Rules accordingly. Many of these prison manuals trace their provenance to pre-colonial scriptures and colonial laws, which the Court also observed.
On discrimination under Article 15
Article 15 of the Constitution imposes an enforceable obligation on the State to not discriminate against citizens on any of several grounds, including religion, sex and caste. In interpreting Article 15, the Court confirms that discriminatory laws have no place in our democracy. The Court has culled out certain anti-discrimination principles emerging under Article 15(1) as follows: Firstly, that discrimination can be either direct or indirect, or both. Second, facially neutral laws may have an adverse impact on certain social groups that are marginalised. Thirdly, stereotypes can further discriminate against a marginalised social group. Fourth, that the State is under a positive obligation to prevent discrimination against a marginalised social group. Importantly it is recognised that discriminatory laws based on stereotypes and causing harm or disadvantage against a social group, directly or indirectly, are not permissible under the constitutional scheme.
Of salient relevance to these times, the Court recognises that discrimination, in history, has led to the genocide of certain communities. This coupled with the Court’s conclusion that if the State itself discriminates against a citizen under any of the mentioned grounds, “then it is discrimination of the highest form”, bears enormous implications for these times where religious majoritarianism and crony capitalism institutionalises subordination and discrimination of religious minorities and the working class, and are fast eroding at the nascent democracy that this country was.
On the broader struggle to dismantle caste discrimination
The Court notes that, throughout history, “the oppressive nature of the caste structure has denied to those disadvantaged castes the fundamentals of human dignity, human self-respect and even some of the attributes of the human personality”.
This is particularly of relevance, given the other recent judgement of the Supreme Court in the caste sub-classification case, where one of the Jst. Pankaj Mittal has denied the very existence of caste in primitive India while arguing that caste was just a “categorisation of the people according to their profession, talent, qualities and nature." Without even referring to the above said view of Jst Mittal, the Supreme Court has debunked his theory by holding as follows:
The history of India has witnessed centuries of discrimination towards the oppressed castes. Violence, discrimination, oppression, hatred, contempt, and humiliation, towards these communities were the norm… This bias manifested in numerous ways, including exclusion from social, economic, and political opportunities. The caste system ensured that the oppressed castes remained marginalised and deprived of their basic rights and dignity.
The Supreme Court, relying on Dr. B.R. Ambedkar, concludes that castes were “self-enclosed units”, which could not be changed, and was assigned to individuals at birth, with each caste linked to a specific profession, and all castes organised into a hierarchical structure and summarises the ways in which the caste system permeated itself:
First, it was based on a hierarchy of four caste-based groupings, where the Shudras occupied the lowest level. Second, the castes outside these four groupings were treated as “untouchables”. Third, the caste system controlled the sexuality or agency of women to maintain the sanctity of caste. Fourth, the caste structure considered certain castes and tribal communities as professional criminals. Fifth, penal sanctions were imposed on those who violated the “law of caste”.
Interestingly the Supreme Court while considering the institutional caste discrimination in prisons, locates this judgement in the fight against caste-based discrimination, while acknowledging that this “is not a battle that can be won overnight” since “it requires sustained effort, dedication, and the willingness to confront and challenge societal norms that perpetuate inequality”. The Court emphatically holds that this judgement is the Court’s “contribution to the ongoing struggle to dismantle caste-based discrimination”.
Article 17 and its prohibition of untouchability
The Court also delves into the letter and spirit of Article 17 of the Constitution, which abolishes the abhorrent practice of untouchability in any form and mandates that the enforcement of any disability arising out of untouchability shall be a punishable offence.
Untouchability as an integral facet of caste has had the effect of dehumanising Dalits and keeping the Dalits away from the mainstream of the society, coming as it does with severe disabilities, restrictions, conditions and prohibitions on Dalits. Caste could only function through the deliberate and ongoing dehumanisation of all the people though. Writing about race, James Baldwin, reminds us that, "Our dehumanisation of the Negro then is indivisible from our dehumanisation of ourselves: the loss of our own identity is the price we pay for our annulment of his."
The Supreme Court reminds that the thrust of Article 17 “is to liberate the society from blind and ritualistic adherence and traditional beliefs which lost all legal or moral base”. In effect thus, Article 17 is an endeavour to regain humanity in society. It “strikes at the heart of the caste system, which manifests in discriminatory practices based on the notions of purity and pollution”.
Article 21: Of Life and Dignity of prison inmates
The rights of prison inmates has been the subject of attention of several judgments of the Supreme Court, as such, it is settled law. This judgement traces this jurisprudence and concludes that:
Thus, the jurisprudence which emerges on the rights of prisoners under Article 21 is that even the incarcerated have inherent dignity. They are to be treated humanely and without cruelty. Police officers and prison officials cannot take any disproportionate measures against prisoners. The prison system must be considerate of the physical and mental health of prisoners. For instance, if a prisoner suffers from a disability, adequate steps have to be taken to ensure their dignity and to offer support.
The Court has elaborated on the concept of “dignity” in this context to hold that dignity forms a part of the basic structure of the Constitution, and that dignity is the “core” which “unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence”. As such, it is held, human dignity is a constitutional value and a constitutional goal, adding that:
The right to live with dignity extends even to the incarcerated. Not providing dignity to prisoners is a relic of the colonisers and pre-colonial mechanisms, where oppressive systems were designed to dehumanise and degrade those under the control of the State. Authoritarian regimes of the pre-constitutional era saw prisons not only as places of confinement but as tools of domination. This Court, focusing on the changed legal framework brought out by the Constitution, has recognised that even prisoners are entitled to the right to dignity.
Caste and occupation
The caste system rigidly assigns certain tasks to specific communities based on birth, with the lowest castes, being relegated to tasks considered impure or unclean, such as manual scavenging, cleaning, and other forms of physical labour. The Court, in examining the constitutionality of the provisions in the Rules/Manuals regarding allocation of labour within the prison, examines the caste system’s assignment of tasks to communities based on birth and notes that convicts from communities lower in the caste hierarchy were expected to continue with their customary occupations in prison i.e. “the caste hierarchy outside the prison was replicated within the prison”.
Importantly the Court notes that:
In line with their overall approach, the colonial administrators linked caste with prison administration of labour, food, and treatment of prisoners. They emboldened the occupational hierarchy with legal policy and imported the vice of caste-based allocation of labour into the prison, due to pressure from the oppressor castes.
With Independence, and the adoption of the Constitution, what ought to have followed was that the rules for prison management of labour, food, and treatment of prisoners, would eschew caste. On the contrary, these post-Independence prison manuals/ rules, largely adopted the colonial philosophy and have shockingly remained in practice till date.
For instance, the Uttar Pradesh Jail Manual, 2022, mandated that a convict sentenced to simple imprisonment shall not be called upon to perform duties of a degrading or menial character unless he belongs to a class or community accustomed to perform such duties. The West Bengal Jail Code Rules for Superintendence and Management of Jail in West Bengal, 1967 mandated that sweepers should be chosen from the Mether or Hari caste, also from the Chandal or other castes, if by the custom of the district they perform similar work when free, or from any caste if the prisoner volunteers to do the work. Further it stated that food shall be cooked and carried to the cells by prisoner-cooks of suitable caste. It also provided that the sweepers should be chosen from the Mether or Hari caste, also from the Chandal or other castes, if by the custom of the district they perform similar work when free.
The Court has set aside these and other provisions holding that “by assigning cleaning and sweeping work to the marginalised castes, while allowing the high castes to do cooking, the Manuals directly discriminate”. It further concludes that:
The persistence of such associations in official documents like the Manuals/Rules normalises the idea that these tasks are somehow natural for marginalised communities, reinforcing harmful societal hierarchies. By assigning specific types of work to marginalised castes based on their supposed "customary" roles, the Manuals perpetuate the stereotype that people from these communities are either incapable of or unfit for more skilled, dignified, or intellectual work.
Discrimination of denotified tribes
The legal encoding of caste-based stereotypes into the Criminal Tribes Act of 1871, which were progressively made even more draconian through subsequent amendments and the Criminal Tribes Act of 1911 which replaced the 1871 Act, is another example of colonial legislation accommodating and institutionalising caste.
The provisions of this law were based on a stereotype which considered several marginalised communities as born criminals. Besides subjecting them to heightened surveillance, it declared them as “born criminals” and assumed an addiction to a life of crime. It enforced “forced nomadism” by taking away their right to settle in a place. Though the Act was repealed in 1952, these “criminal tribes” became “denotified criminal tribes”. However, the discrimination did not end there and has continued, also to be replicated in prison manuals/rules in independent India.
For instance Rule 404 of the West Bengal Manual provides that a convict overseer may be appointed to be a night guard provided that “he does not belong to any class that may have a strong natural tendency to escape, such as men of wandering tribes” while the Madhya Pradesh Manual permits the classification of habitual and non-habitual criminals, where habitual criminals are described as someone who “is by habit member of a gang of dacoits, or of thieves or a dealer in slaves or in stolen property”, even if no previous conviction has been proved. Striking down all such provisions, the Court notes that when such stereotypes become a part of the legal framework, they legitimise discrimination against these communities.
Conclusion
In conclusion, while the Court has ruled that caste-based discrimination in prisons is illegal, it will remain to be seen how far this ruling is implemented in practice. Caste-based discrimination has a long history that requires dismantling at every scale, from the space of the prison to wider society. Importantly, the Court has emphatically reiterated that the failure to provide dignity to prisoners is a “relic of the colonisers and pre-colonial mechanisms, where oppressive systems were designed to dehumanise and degrade those under the control of the State”. Stating so, the Court upholds the right of prison inmates to be treated humanely and without cruelty, cautioning that “police officers and prison officials cannot take any disproportionate measures against prisoners”, and must “be considerate of the physical and mental health of prisoners”.
It should be added that this sounds ironic, given that officially there are 2000 prison inmates deaths annually due to various reasons, particularly the neglect of State. Also ironic is that this judgement comes at a time when scores of political prisoners languish in jail surviving the harshest face of the state. The decade-long brutal incarceration and neglect in prison killed Prof. G. N. Saibaba. Just as it killed Kanchan Nanaware, Stan Swamy, Pandu Norate and scores of unknown others. A fascist regime hellbent on crushing any dissent, has designed a system to indefinitely hold political dissenters behind bars, cloaking this inhumanity with the facade of legality using draconian laws and deploying pliable so-called law and order agencies at its whim and fancies. Also inescapable is the fact that the majority of the prison inmates are Dalits, Adivasis and from other socially backward communities languishing in jail, mostly as undertrials, unable to escape the carceral system.
In this situation, this judgement is a silver lining, and must serve as an impetus to reorient the understanding of custodial discrimination, violence and death not merely as a consequence of police brutality, but also the brutality of incarceration marked by negligence and callous treatment while in prison custody.
