Historic Legacy of Untouchability and Caste Enslavement: A Case of Reparative Justice

Introduction

The (ex)untouchables constitute about one fifth of India’s population. As a social minority, they have suffered from discrimination and exclusion of every kind and form possible. The untouchables in India (and South Asia) had the misfortune of suffering bondage—the bondage of untouchability and that of caste ascribed slavery. Disabilities associated with untouchability and caste slavery constitute a deadly combination of double exploitation which completely cripples the untouchables. The Indian Constitution recognised the past injustices of untouchables and, in 1950, developed legal safeguards against discrimination and an affirmative action policy to secure a fair share proportional to their population in the legislature, in public services, government education institutions and public housing. However, the affirmative action policy had limited success in overcoming the disadvantages of untouchables. They were not adequately compensated for the loss of property, wealth accumulation, certain kind of work and denial of education suffered for the longest period by any social group elsewhere. The gap between the Untouchables and the high castes in human development still persists at unacceptable levels. One of the ways to effectively bridge this well-being and developmental gap would be to correct past wrongs through an appropriate reparation policy. The discussion that follows here, will provide justification and evidence in favour of redistributive justice through reparation policy, both on account of injustices suffered due to untouchability as well as caste-mandated slavery. We understand this to be an area of research that has a long and rich history of engagement in the west, particularly America, with respect to the question of reparations for the descendants of black slave labourers. We here are making an early and cautious attempt to try and examine if there is a case for reparations for the ex-untouchables as well as the caste-enslaved.

Evidence on Untouchables as an Enslaved Caste

Many Studies refer to the connection between caste and slavery. In a first in-depth study on slavery in ancient India, Chanana (1960) observes, ‘in any case, the social and legal restrains on the Shudra compelling them to do the slave’s work, did mean a change worse for the Shudra and could have led at a later stage, for considering all the Shudra as the Brahmins slaves’ (Chanana, 1960, p. 116). ³

The institution of slavery in India, with special reference to agricultural slaves, seems to have been established in a very remote time, and is linked with the idea of innate dependence of Shudra and their perpetual slavery as one of the axioms of Brahmanism, because the Shudra (is believed to have) issued from the feet (of God) denoting service. (Lorennzo, 1945, p. 134)

Writing about slavery in the Mauryan Period (300–200BC), Sharma (1958) says, ‘A labourer belonged to the Aryan society (Brahmana, Kashatriya, Vaishya and Shudra), but slaves hailed from the Dasa varna (some Shudras and Melchhas)’ (Sharma, 1958, p. 192). In the same tone, Temperley (2000, p. 178) observed, ‘What render slavery in India most bewildering to Europeans, however, was its relations, or precisely, the way it was superimposed on India’s caste system’.

Studies both earlier and recent (Mohan, 2015; Saradamon, 1980) provide fair insights into the nature of untouchable slavery in Southern India in the 19th century. They described the rights of slaves, the trade in slaves, mode of work, wages and the living conditions of slaves. As a designated untouchable slave caste, Pulayas did not have the right to property. They could be sold, leased or mortgaged, just like land, cattle or things. The slaves could be offered as presents to friends or as gifts to temples (Saradamon, 1980, p. 52). The slave owner could transfer his servant as he pleased, separating children from parents, and wife from husband, give them as the wedding dowry of his daughter, to assign them over as payment for his debt (Mohan, 2015, p. 60). The Pulaya untouchable slaves did not have a life of their own in any sense.

The impure social status of the untouchables prohibited them from doing any domestic work. They were mostly engaged in agriculture. The agrarian labour force was drawn largely from the traditional untouchable slave castes such as Paraya and Pulayas, called agrestic slaves or those attached to soil, often referred to as ‘soil slave’. They were a part of the livestock on the estate. They had no fixed hours of work and worked from early morning to very late in the evening under strict supervision and could not be absent for a single day, or they would be punished. ‘Sometimes, slave men were yoked with bullock or buffalo to draw the plough and were chained afterwards, so that they might not escape’ (Mohan, 2015, p. 65). This reveals the hard labour the slaves were being forced to undertake, often furrowing the field along with bullocks, treating them just as animals, causing their bodies to suffer the pain of hard labour.

Their earnings were extremely low; which would barely keep them alive, certainly much less than what they contributed to the household income of their master. They generally received one-third less than what the Shudra labourer received (Mohan, 2015, p. 74). With extremely low remuneration for their work,

Often they are left to eke out a miserable existence by feeding on wild yams and such refuse as would only be sought after by that extreme wretchedness that envied the husk that the swine did eat and not frequently are they tempted by the carving of hunger to rob gardens of jack, plantains and coconuts. (Saradamon, 1980, p. 57)

Mohan describes an account by a slave who said,

They ate leaves of plant called thakara, which they consumed boiled. For half the year they ate the roots of wild yams dug from jungles. From other sources we know that they also consumed small fish and oyster from the nearby streams, paddy field and canals. (Mohan, 2015, p. 70)

It must be mentioned that the untouchable slaves were forbidden from consuming a variety of food items under the restrictions imposed by caste rule.

As regards clothing, Mohan quotes the statement of an ex-slave which he gave in 1912:

He said that his co-slaves were not allowed to wear clothes, much less carry umbrella or put any things on their heads. All they were allowed to wear were the leaves and barks of trees. Thus, they generally go without any clothing, barely covering their nakedness by string of leaves propped around their loin. (Mohan, 2015, p. 55; Saradamon, 1980, p. 68)

Manusmruti, composed in 200BC, dealing with wages ordained:

‘The remnants of their food are given to him, as well as their old clothes, the refuse of the grains, and their old household furniture’ (Ambedkar, 1987; Bulher, 2006, The Laws of Manu, 125, p. 429)

Gautama reiterated what Manu prescribed: ‘Shudra serves the upper castes; seek his livelihood from them; use their discarded shoes, umbrellas, clothes, mats, and the like; and eat their leftovers’ (Ambedkar, 1987, p. 430). Thus, what was legally prescribed in 200BC continued 2000 years later in the 19th century, till slavery was delegalised by the British in 1843.

The untouchable Pulaya did not have a proper hut to live. They lived in small temporary huts, which were no better than ‘large basket’. These huts were put up in rice fields when the crop was standing and shifted near the shacks while thrashing. Often, Pulayas lived in hovels perched on the side of the fields or on the trees near the fields to watch the crop after a hard day’s toil. Saradamon (1980) described the consequences on the health of the salve.

Being frequently engaged in digging and manuring, transplanting the young rice, repairing the irrigation canal banks and performing other labours in the rice field, sometime standing for hours in the water, they are subject to rheumatism, fever, cholera, and others which carry off many long before they approach the old age. Many fall early victims to fever, rheumatism and other diseases and that very few lived to old age that they were poorly fed and scantly clothed.

‘Generally, no provision is made for their support when their labour is not required, or disease or age render them unable to labour, that no medical aid is provided for them when ill’. Mohan quote from petition given by christen missionaries petition to the king of Tranvcore in March 26, 1847 (Mohan, 2015, p. 63).

The untouchable slaves were considered impure and polluting. This made their situation a lot worse than the pure caste slaves from the lower Shudra group. This barred them from domestic work and forced them to work outside in the field. The impure status of Pulayas also affected their access to employment and trade. He could not enter a town or a village, no employment was available to him except that of working in rice fields. He could work neither as a porter nor as a domestic servant for caste affected even his sale of items for a living.

He has to place the mats, palm-leaf umbrellas and other things he made for sale on the road or high way and retire to an appointed distance shouting from there, at passer-by. He was paid accordingly to the fancy of the upper-caste buyers. (Mohan, 2015)

Great cruelties were practiced on the persons of the slaves. The master was the legal judge for offences and could punish them by death if they appeared to deserve it. Barbarities like cutting of the nose were practiced in the olden days. But, during recent times, these severities have been reduced to corporal punishment. One of the clauses in the deed of transfer of slaves in olden times, was ‘you may sell him or kill him’ the owners has formal power to flog them and enchain them, and even deprive them of their lives (Saradamon, 1980, pp. 53, 59). Even if the severity of corporal punishment had lessened by the 19th century, life was in no way less harsh for the slave.

Summarising the institution of untouchable slavery from the literature of the mid-19th century, Mohan observed:

We cannot calculate how many of these sons of bondage are prematurely removed from this world in childhood and youth for want of sufficient nourishment and clothing. Those who reach maturity are doomed to work like beasts of burden, to live in wretched hovels to eat the most offensive animals and reptiles and to be treated as outcastes by their fellow-creatures. Their evidence is not admitted against their masters and if they meet a free person on the road, they are bound to run from him least they pollute him. They draw out a miserable existence and are often left in old age to beg for their support or to perish with hunger. These are some of the many woes connected with slavery of untouchable Pulayas. (Mohan, 2015, p. 61)

In another description of Pulaya slavery, during the British period (1772–1843) with some variation, the same is the evidence for other parts of British India, from the Law Commission on Slavery, which prepared a detailed report on the status of slavery based on all India data and information observed in 1840:

that in peculiar condition of slavery which prevail on east and west coasts on the southern Peninsulas of India, and it would seems more or less elsewhere, whole caste have been regarded as impure outcaste, subject from remote antiquity, to the cultivation of the soil ‘The distinction between these outcastes and the pure classes is, in the part of India where it prevails quite as marked as any that can arise from colour. (Adam, 1840)

The evidence from the Law Commission ultimately led to a law against slavery 3 years later, in 1843.

Moral and Legal Justification for Reparation

From the brief yet, telling accounts above, there definitely seems to be a strong case for reparation for the injustices, massive material losses and psychological harm and pain caused to the untouchables. The enrichment of the higher castes had come at the cost of the impoverishment of the untouchables due to underpayment of wages to slave labour and denial of rights to land, enterprises and education, both as untouchables and as slaves. In fact, the bulk of the wealth of the high caste was generated through the hard and exploitative labour of untouchable slave labour. Since the high castes have benefited at the cost of massive losses to the untouchables over centuries, there is a legal and moral justification for having the higher castes pay back the stolen wealth to the untouchables. The denial of the right to property, education and underpayment of their labour left the untouchables with negligible wealth, low education and high dependence on wage labour.

Often there is an opposition to reparations by the individuals whose ancestors were beneficiaries of past advantages, for they argue that they cannot equitably be held liable for the crime committed by their ancestor. However, the fact is that the past advantages are carried forward through intergenerational transmission of property, status, authority and power (Feagin, 2004). The gains to the present generation have come from the transmission of capital assets, human resources, social status and power, making the present generation of high castes the beneficiaries their ancestors’ past privileges. If something is stolen and passed down through generations, it still needs to be returned to its rightful owner. The inter-caste disparities in wealth and human resources between untouchables and high castes are evidence of inter-generational wealth and human resource transfer. Who should pay for the compensation? The answer will also depend on who benefited from underpayment to untouchable slave labourers and the denial of their rights to property and education as untouchables and slaves. The answer also depends on who enforced the Hindu laws of slavery and untouchability? Clearly, it is the higher castes that benefited from the denial of property rights and underpayment of untouchable slaves. Among the higher castes, the Brahminas, who conceived the Brahminical theory of caste and slavery, were enriched from the gains. In the enforcement of the Hindu law of untouchability and slavery, ‘the State and the higher castes’ were involved. This is obvious from the provisions of the law of Manu and others.

Manu had clearly ordained:

‘He (Shudra) should serve Brahmins for the sake of heaven or for the sake of both, for when he (Shudra) has the name ‘Brahmin’ attached to him, he has done all there is to do. The service of a Brahmin alone is declared to be the pre-eminent activity of a Shudra’.

Manusmirti further elaborates on the occupation of Shudra:

‘Service to Brahmin alone is declared to be the pre-eminent activity of a Shudra, for whatever other work he may do brings him no reward’. (Bulher, 2006, The Laws of Manu, 122, p. 429)

‘In return, the untouchable receives, Manu says, ‘The remnants of their food be given to him, as well as their old cloths, the refuse of the grains, and their old household furniture’ (Bulher, 2006, The Laws of Manu, 125, p. 429).

Gautma reiterated what Manu had prescribed.

‘Shudra serve the upper castes; seek his livelihood from them; use their discarded shoes, umbrellas, clothes, mats, and the like; and eat their leftovers’. (Ambedkar, 1990, pp. 52–53)

Manu also prohibited the Shudra from accumulating wealth ‘No collection of wealth must be made by shudra even though he be able to do it, for shudra who has acquired wealth gives pain to Brahmans’ (Bulher, 2006, The Laws of Manu, 129, p. 439).

But Manu gives overwhelming economic rights to Brahmana:

‘Whatever exists in the world is the property of the Brahmans, on account of excellence of his origin the Brahmana is, indeed entitle to all.’ (Ambedkar, 1987, p. 120).

The legal responsibility of enforcing the Hindu laws framed by Manu was obviously with the state, the king.

Manu ordained, ‘The King has been created (to be) the protector of the castes (Varna) and orders, who all according to their rank, discharge their several duties’ (Bulher, 2006, The Laws of Manu, 35, p. 221).

From these legal provisions, it is quite obvious that, all castes joined together to deny access to their respective occupations, that is, to education by Brahmana, to military and governance by Kshatriya, to trade and commerce by Vishay and to agriculture and livestock keeping by Shudra for the untouchable castes. In so far as all castes have benefited in different ways, it is these four castes that are obliged to compensate for the loss of wealth and education of untouchables. The Hindu State enforced the Hindu laws related to untouchability and slavery from about 600BC till 1772, and the British government carried it forward till they enforced the new Anglo-Indian laws delegalising slavery in 1843. Therefore, it is the prime responsibility of the ‘state’ to raise resources to pay for the reparation of untouchables. The British state therefore stands culpable and should share in the reparation costs for the period of their rule between 1772 and 1843.

Another issue is—whether to compensate untouchable victims as an individual or as a group? This issue has been a subject of discussion in studies on reparations to African Americans in the USA and elsewhere (America, 1993). In the case of untouchables, who suffered from caste discrimination through untouchability and slavery for about 2,500 years, to identify individual victim with continuity is marked with great many difficulties. To estimate the loss to the community is equally difficult for such a long period. The workable approach is to estimate the losses through the gap between the untouchables and the rest, in terms of human development indicators, capital assets such as land, income-earning assets and wealth and human resources. Thus, the most feasible approach seems to be a community-based group approach, where all the descendants of those designated as untouchables and caste slaves who suffered injustices from untouchability and slavery for a long period need to be supported.

Some idea about the developmental gap can be had from the following data on indicators. In 2013, of the total wealth in the country, the Scheduled Caste’s (official name for the untouchables) share was only 5% in rural areas. Their share of agricultural land was only 5% and 8% in building ownership. The higher caste, on the other hand, owned 39% of total wealth, 41% of land and 39% of buildings. In urban area, SC owned only 4% of total wealth, 6% land and 2.6% of building as against 45% of land and 76% of building by high caste, much in excess of their population share. In 2015, the educational attainment rate of Scheduled Castes was half (20%) of that of the higher castes (43%). Due to a lack of access to capital assets, in 2014–2015, nearly half of the Scheduled Caste depended on casual wage labour, compared to 11% of the high caste. In 2012, about one-third were poor, compared to 11% for high castes.

Most importantly, caste discrimination and the practice of untouchability continue despite anti-discriminatory laws. Between 2001 and 2013, the SC registered about 54,257 cases of caste discrimination and violence—4,174 cases annually under the Prevention of Atrocity Act 1989. This is obviously just the tip of the iceberg. Primary studies show extensive discrimination in employment, farming and enterprise/business, amongst others. According to the findings of the primary survey done in 2013 in sample villages of India, the SC engaged in grocery, restaurant/eatery and transport services faced discrimination, with their goods for sale and transport services being purchased and used less by the higher castes. In the case of SC farmers, while access to inputs is fairly open, they face discrimination in the buying of inputs and the sale of farm produce (Indian Institute of Dalit Studies, 2013).

Within the untouchables, however, the economically worse off and the poor may be targeted via specific policies and programs. Among them, those lagging behind the high caste in spheres such as ownership of income-earning assets, education and training, housing, health, and so on, could be the focus of the reparations. It is evident that the untouchables possess negligible capital assets like agricultural land and enterprises. They are less educated and skilled. They suffered more from poverty, malnutrition and poor housing. They also lack a fair share of formal sector employment and depend more on casual wage labour. Bridging the gap between higher castes and untouchables in these spheres would necessarily require schemes under reparation policy to increase ownership of agricultural land, enterprises/business, improvement in education and higher attainment in higher and professional education, including skill development, fair share in regular salaried jobs, proper housing and health for the economically worse off sections and poor among the untouchables.

This is the social debt that the ‘state and the high castes’ owe to the untouchables for the exploitation and social injustices suffered by them for the longest period of time anywhere in the world.