On the relationship of poverty with untouchability practices

Nikhil Dongol,

Kathmandu School of Law, Nepal


INTRODUCTION


BACKGROUND

The word poverty comes from the old (Norman) French word poverté (Modern French: pauvreté), from Latin paupertās from pauper (poor).[1] Poverty as a metaphor of the state of deprivations consists of degeneration of moral values on the part of rich people in the form of monopoly on income and rent-seeking attitude.[2] Poverty is saddening outcome of the deprivation of human potentiality of enjoying rights, social inclusion and access to resources for producing income. Amartya Sen points out the absence of capacity to identify preference and making choice.[3] Poverty is a deprived identity constructed in person by lack of rights necessary to build his/her capability of making an informed choice of preference.[4]

Poverty is not a cause but an outcome of deprivation. To address the problem of poverty, the state of deprivation should be addressed. Sangroula discussed three sets of deprivations which combine three situations that are simultaneously affecting the vector of a person lowering to a bottom-line level:

a) Deprivation of entitlements to livelihood/ essential commodities[5] and advantages,
b) An acute state of social exclusion (socially as well as politically) and
c) The absence of access to resources and opportunities to develop.
These state of deprivations is the state of subordination in economic as well as socio-political sense or context.

“Fundamentally, poverty is a denial of choices and opportunities, a violation of human dignity.  It means lack of basic capacity to participate effectively in society.  It means not having enough to feed and cloth a family, not having a school or clinic to go to; not having the land on which to grow one’s food or a job to earn one’s living, not having access to credit. It means insecurity, powerlessness and exclusion of individuals, households and communities.  It means susceptibility to violence, and it often implies living on marginal or fragile environments, without access to clean water or sanitation”[6]

Poverty is usually measured as either absolute or relative. Absolute poverty refers to a set standard which is consistent over time and between countries. First introduced in 1990, the dollar a day poverty line measured absolute poverty by the standards of the world's poorest countries. The World Bank defined the new international poverty line as $1.9 a day in 2015. This traditional definition of poverty is very far from reality and is very controversial. Each nation has its own threshold for absolute poverty line. The depth and intensity of poverty varies across the world and in any regional populations. Relative poverty views poverty as socially defined and dependent on social context, hence relative poverty is a measure of income inequality.

Truth is existential. Inequality in wealth and income is a fact because it exists and it can be seen. Poverty is a state established by deprivation of five cardinal freedoms of human life. They are[7]:

Ahimsa (freedom against violence)Aryogyata (freedom against diseases)Asteya (freedom against absence or want)Aparigraha (freedom against exploitation)Amartwa (freedom against early or unnatural death

Legally speaking, Poverty is a deprivation of the protected sphere and the vector of adequate living.[8]

Similarly, untouchability and discrimination are integral part of each other. Often, the end of untouchability is the discrimination while the end of discrimination is untouchability. In a narrow sense, untouchability can be taken as a part of broad discrimination. Discrimination can take different form and state. In the context of world, race was taken as a major form of discrimination due to which ICERD defines "Racial discrimination" as any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.[9] Whereas in Nepal, caste was taken as a fundamental one and the act defines caste-based discrimination and untouchability[10]

The division of persons into four types to perform respective service or profession was the crux of the Vedic Plan. It had in no sense an implication of "hierarchy" in societal position. The distinction was not based on the 'platform' of birth one had, but on the quality or capability s/he had gained by virtue of nature. Thus, it was very much possible to have a son/daughter of Sudra to be a Brahmin because of his/her role of teacher or intelligence and vice versa. It was equally possible for a son/daughter of a Brahmin to become a Chettri and vice versa. However, in the course of time, it was converted into vertical hierarchy and had a huge ramification.

To examine the emergence of the practice of untouchability from this analytical paradigm, it is essentially an outcome of the vested and monopolized interpretation of the custom or professional division of the people, which was originally created to "stabilize the function of society in harmony as it was necessary for the interpersonal relations of the member of the society"

Foundation "Implications" of the Practice of Untouchability

Monopolization of State Power: It reduces, on the ground of hierarchical structure, certain to inferior peoples incapable of exercising the rights participate in the governance processes

Creation of a "Status –governed Personality":  It is an instrument to create a status-governed personality of human persons. In this practice, a person's personality is determined by his/her platform of birth. His/her rights and duties are determined by his/her being associated with birth station.

"Status-Governed Personality" is an instrument for maintaining status-quo of human personality for reinforcing hierarchical structure: The sole objective behind untouchability is to secure hierarchy of certain groups against others, so that they have unchallenged and unquestioned privilege in governance.

Legalization of the exclusive privilege of hierarchical Superiority: The ostracization of one is necessary for other's exclusive privilege of absolutist power. The religion or belief of fatalism is created as a ground philosophy for untouchability.

Creation of service provider population for exclusive benefit or comfort of Elitist class: The untouchability helps to create a 'distinctly recognized' population, which is, based on the coined belief of fatalism, defined as a 'group to be ruled or providing service for the privileged class.

For all these objectives, the untouchability is supported by norms and values coloured by religious interpretations. The concept of the hierarchical form of caste was a result of Muluki Ain, 1854 enacted at the time of Junga Bahadur Rana which was against the volksgeist- common consciousness of the people at that time developed by the exponents of Historical School, Friedrich Karl von Savigny. This caste-based untouchability is a repercussion of this law. However, the society has change into a different paradigm. From the Sociological Jurisprudential perspectives, according to Roscoe Pound, we should 'look more for the working of law than for its abstract content. There are many laws[11] to prohibit the untouchability practices and interpretation of the court[12] has propounded much jurisprudence in favour of equality and equity, however, the untouchability practices can still be found in the society. Therefore, we ought to look at the societal perspective as law as only a means to an end. The main purpose of law should be to eradicate the untouchability practices found in society and to use the law as a means; we ought to figure out the causes of poverty. Hence, this study aims to figure out whether poverty as a cause of untouchability practices.


CONTENTS


Hagerstrom, a profound Scandinavian Realism philosopher opines that the term ‘justice’ represents, in reality, no more than a personal, highly-subjective evaluation of some states of affairs.[13] Justice is a vague and subjective concept. Max Weber's theory of scientific approach to law identified 'legal-rational form' as a type of domination, not attributable to people but to abstract norms.[14] Injustice is an objective fact, whereas justice is a perception. The common person looks for the removal of injustice as a form of justice.[15] Injustice could be said to be present if the following things exist:

Regressive status quo hierarchical structure of the societyDeprivation

As per the above assumptions, the so-called Dalits are placed in the lower class at the vertical hierarchical superstructure of the society and are derived from the essential commodities like water, opportunities to development like education as well as a tendency to exclude from the society, finally, leading to deprivation. Moreover, this leads to change in existing social structure and values, in other words, to regressive status quo. Hence, the practice of untouchability is causing injustice to the so-called untouchables.

John Rawl's transcendental institutionalism approach to justice envisage for a perfectly just society. His two principles of justice inaugurate a new notion of law in Western Jurisprudence:

First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all[16].

His difference principle and ignorance of veil led to affirmative action to Dalit in each and every sector of Nepal along with the provision in Nepali law[17]. His concept of distributive justice and was applied to the United States and many other countries but failed miserably. In light of its drawbacks, Amartya Sen opines on the idea of justice rather than the concept of justice. He is of the view on building the capability of the individuals in regards to productivity, creativity, intellect and persistency. Simply, he viewed justice to make the individuals capacity to make the informed or right choice of preference.


The above mentioned about the role of the state in the eradication of the problem of untouchability. However, a state in its capacity making law is not enough. Law and society are the two side of the same coin. Sociological School focuses on the functional approach of law. It concerns the law in action. Lawyers are the lawmakers and state is only the announcer of those laws made from society. Law as a social institution to satisfy social wants by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct thorough politically organized society.[18] Roscoepound had used the term social engineering for recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence.[19] His notion of law in book and law in action can be clearly seen in the context of the untouchability practices.

The people belong to that class group had themselves tried to solve the problem of untouchability. Firstly, they convert into Christian Religion. The conversion, they think, it can change the whole mindset of the same peoples making it a new synthesis from the conflict of thesis and antithesis as analyzed by Marx. This can prevent them from social exclusion creating a new society in itself. Secondly, they went abroad in search of employment opportunities. This can make them entitlement to various commodities and life opportunities since they are economically sound enough. The trend of foreign employment in Nepal had not only attracted these so-called Dalit but also non-Dalit which led to lack of manpower in the village, consequently, leading to the societal breakdown and most importantly, the untouchability practices. In most cases, the breakdown of the society is negatively connoted, however, in this context of untouchability practices; it seems to be positive in eradicating it.


Thirdly, the stratification of the village into different strata has been also prevalent to mitigate the problem of untouchability. The Dalit village and Tamang village was planned and constructed separately to build up different water canal, since, water touched by one is not used to others. IN this way, the common consciousness of the people is resulting in the slow decrease in the defects of the untouchability practices.


ANALYSIS AND CONCLUSION


Untouchability is the institutions made by the elite class for which Marx calls it a superstructure. Today, the Nepalese society has in the degree of converting into Emile Durkheim's organic society becoming more complex with the emergence of new institutions[20] like the church and different local units. These units are more likely to regulate each and every aspect of public life even in rural areas. However, this study is limited to the villages of Kavre and Ramechhap district and does not cover the urban towns and cities where the person is evaluated by their value rather than their caste.

For a law to be a living law as said by Elrich, there needs a prospect of economic analysis of law. The historical dialectic materialism could be analyzed in the context of deprivation in relation to untouchability practices; however, the change in the situation and the emergence of the new social institution has made it ineffective.

In regards to the law, the law is a dynamic process so that rules are constantly changed, created, and moulded to suit particular situations. Law should possibly include the prospects of the concept of the welfare state as well. In Bhimeshwor VDC, there were three villages (Bhedagaun, Nayabari, Charuwa). Even if one village is connected with the transportation facility the other will automatically get access to the market. In this regard, the government should take an initiative to provide subsidies to the vehicle in order that the people's right to be entitled to commodity is secured.

Basically, the law should create a norm, most importantly, a legal norm. Not every norm is a legal norm; its content should be logically deducible from a presupposed basic norm (Grundnorm). Moreover, grundnorm of every legal system is derived, not logically but sociologically. An alternative method of creating norms is that of custom and is based on the superiority of what Hayek calls "spontaneous order" which is unplanned, undersigned and evolved. In this regard, the existence of a robust legal profession is a vanguard of the rule of law to create an environment of making a norm creating law.


Bibliography


[1] Walter W. Skeat, An Etymological Dictionary of the English Language (Dover Publications Inc., New York, 2005) 469.

[2] Yubaraj Sangroula, Right to have Rights (Lex & Juris Publication Pvt. Ltd., Kathmandu, 2018) 1.

[3] Ibid 2

[4] Ibid 3

[5] Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation, New Delhi: Oxford University Press, (sixth impression) 2011) Preface.

[6] 'Indicators of Poverty and Hungers, United Nations', 1998, available at <https://www.un.org/esa/socdev/unyin/documents/ydiDavidGordon_poverty.pdf> accessed on 2 April 2018.

[7] Sangroula (n 2) 18

[8] Ibid

[9] International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 Dec 1965 entered into force 4 January 1969) 660 UNTS 195 (ICERD) art.1.

[10] Caste Based Discrimination and Untouchability (Offence and Punishment) Act 2068 (Nepal), s 4

[11] Universal Declaration of Human rights (adopted on 10th Dec 1948) 999 UNTS 171 (UDHR) arts. 1,7,16; International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 Dec 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD) arts. 1,2,5,6,7; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts. 1(1)(2),2(1)(2)(3), 6(1),14(1); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966 entered into force 3 January 1976)  993 UNTS 3 (ICESCR) arts. 3,6(1)(2),7(a)(b),9,10,11(1)(2),12(1),13(1)(2); Constitution of Nepal 2072 (Nepal) art 18; Human Rights Commission Act 2053 (Nepal); Racial discrimination and untouchability (crime and punishment) Act 2068 (Nepal) ss 5,7;

[12] Man Bahadur Biswokarma v. HMG (NKP 2049) 2555; Dil Bahadur Bishwokarma v. HMG (NKP 2062) 1177-1193; Adv. Ratna B. Bagchand et al v. OPMCM et al, WN 3378 (NKP2061)

[13] L.B. Curzon, Jurisprudence (2nd edn Cavendish Publishing Limited London 1998) 169

[14] Dr. Yubaraj Sangroula, Jurisprudence The Philosophy of Law ( Lex and Juris Publication Pvt. Ltd. Bhaktapur, 2018) 260

[15] Sangroula (n 2) preface  xx

[16] John Rawls, A Theory of Justice (Harvard University Press England 2005) 60.

[17] Constitution of Nepal 2072 (Nepal) arts. 40, 42, 84(2), 86(1)(a), 255; National Dalit Commission Act  2074 (Nepal); Caste Based Discrimination and Untouchability (Offence and Punishment) Act 2068 (Nepal).

[18]Roscoepound, An Introduction to the Philosophy of Law (Universal Law Publishing Co. Pvt. Ltd. Delhi 2006) 47

[19] Ibid

[20] Emile Durkheim (Steven Lukes ed), The Division of Labour in Society (Palgrave Macmillan 2013) p. 148

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