than thousand years. When the great tamil kings belonging to the erstwhile Chola, Chera and Pandya Kings built huge temples for their gods, they felt that there is a need to maintain these temples in a proper way and thus need full time devotees to take care of the diety and the temple premises. One other angle given to constructing Huge temples are to protect the people from flood, cyclone or any other natural disaster. In other words, temples are meant to be shelter for the people of that area from natural disasters. Hence they appointed girls to maintain these temples. The main function of these girls are to sing and performing dances and taking care of the diety. They are considered to be the ‘wives’ of the ‘gods’ in the temple in which they are appointed. They are not allowed to marry any mortal man during their life time. These girls are held in High esteem as they are considered to be close confident of the god. The dance which they perform is famously known as ‘Barathanatyam’ the most famous dance form of South India.
This practice of dedicating girls to deities are commonly known as ‘Devadasi System’ and the girls thus dedicated are known as ‘Devadasi’ which is a Sanskrit word or ‘Thevaradiyar’ which is a Tamil word that literally means ‘female slaves of the god’. As mentioned above these ‘Devadasi’ are expected to be experts in Music and Dance. As years passed ‘their service shifted from gods to earthly gods and lords’ . They are forced to do service not only to the deities, but also to the landlords and rich devotees of the deities. In short, they started living the life of a prostitute with religious sanction and customary backing. Initially this system was prevalent only among the upper caste Hindus particularly of the Brahmin community .
The British colonization of India brought major change in the religious and cultural fabric of India. The upper caste ‘Brahmins’ occupied major positions in British rule and were able to recognize the dance performed by ‘Devadasi’ as ‘Bharatanatyam’ and were able to give a cultural supremacy for this form of dance, thus bringing out devadasis’s to main stream of life.
However, the ‘Brahminical Hindu Religion’ which is known for its Caste imbalances and discrimination against the lower caste sowed the seeds of the system into economically, politically and socially disadvantaged lower caste Dalit Hindus. This system started spreading its tentacles to other parts of the country in different forms and names such as Bogams in Andhra Pradesh, Jogatis or Basavis in Karnataka, Thevaradiyar in Tamil Nadu, Muralis in Maharashtra, Maharis in Kerala.
Dalits dedicated their girls to the Diety mainly because of two reasons one is because of the superstitious belief that it will bring glory to their family and their village, the other one is the economical reason that it is very difficult for the parents to marry of their daughter because of the prevalent ‘dowry’ system and also if they dedicate the girl to the Diety, their family will be taken care of by the village rich man to whom the girl do the sexual favours in the name of the ‘Diety’. Over a period of time, this practice has represented a clear violation of Human Rights with these ‘Dalit Devadasis’ were dedicated with a hidden object of performing sexual favours to initially upper caste Hindus and then they become a public property forcing them to enter prostitution. They are also not allowed to marry any man of their choice and often fell a prey into the hands of Broker agents representing brothels from Mumbai and other areas.
India is a party to a number of Human Rights Instruments like that of International Covenant of Civil and Political Rights 1966, The International Covenant for Economic, Social and Cultural Rights 1966, The International Convention for the Elimination of All forms of racial Discrimination 1966 which advocates for among others, equal rights for women and prohibits racial discrimination in any count. Added to that provincial states in India has enacted legislation like The Bombay Devadasi Act 1934, The Devadasi(Prevention of Dedication) Madras Act 1947; The Karnataka Devadasi (Prohibition of Dedication) Act, 1982 to tackle this menace of Devadasi System. Irrespective of this, it is widely reported that this system prevails in some parts of India particularly among the Dalit community.
This paper attempts to find out the root causes of the system and the reason why this system is still prevalent in India. Accordingly, this paper is divided into four parts, the ongoing is the first part that introduces the topic, Part II deals with the History and Origin of Devadasi System, Part III deals with the Social movements that fought against the Devadasi system, Part IV analyses India’s obligation to eradicate the system in line with the international obligation which it assumed through various treaties and finally part IV concludes with recommendations to eradicate the same.
DEVADASI SYSTEM AND VIOLATIONS OF HUMAN RIGHTS: STATUS OF INDIA’S LEGAL OBLIGATION
Devadasi’s could face discrimination on three counts viz as a woman, as a Dalit and sometimes as a child. International community has time and again tried to address the issue by way of multilateral Conventions/Treaties making member states to eliminate these kind of discriminations. Accordingly a number of International Instruments are made at the international level to address these menace which includes the Universal Declaration of Human Rights (UDHR), the International Covenant for Civil and Political Rights (ICCPR), the International Covenant for Economic Social and Cultural Rights (ICESCR), the International Convention for Elimination of Racial Discrimination (ICERD), the Convention on the Elimination of all forms of Discrimintion against Women (CEDAW).
One of the purposes of the United Nations is to achieve international co-operation “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion and to be a centre for harmonizing the actions of nations in the attainment of this purpose. Art 1 of the Universal Declaration of Human Rights states that ” all human beings are born free and equal in dignity and rights”. Art 2 further bestows rights upon individuals without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Similarly Art of the International Covenant for Civil and Political Rights 1966, prohibits discrimination of any kind including discrimination based on ‘social origin’ . Art 2(1) of ICCPR mandates the state parties to ‘ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant’. Art 2(2) requires the state parties ‘to adopt such legislative or other measures as may be necessary to give effect to the rights’
As mentioned above, India is a founding member of these Conventions. However India has not till date enacted any enabling legislation to implement the same in the domestic sphere. Without an implementing legislation Indian courts may not be able to enforce the provision of these treaties in the domestic realms. Needless to say, Treaties are considered to be the main source of international law. When it comes to human rights, treaties play an important role. Human rights treaties have contributed to the development of customary rules and general principles of international law. They create obligations not only among parties but also between parties and individuals. More important, these treaties have become a source of inspiration to many judges and lawyers in their interpretation of domestic legislation. Some international organizations grant their membership only to those states, which. ratify certain human rights treaties. The ratification of human rights treaties demonstrates the ratifying state’s adherence to civilised standards. As a result, a state’s credentials in international society depend in part a1 least on the acceptance of and compliance with its obligations under human rights treaties. Thus the ratification of Human Rights treaties by India may be seen as an act to outshow the world that it is a civilized nation thus avoiding isolation in international Human Rights diplomacy.
But the non-enactment of a domestic enabling legislation alone cannot be considered as failure on the part of the member state to fulfill the international obligation which it assumed by way of treaty. A state may not go for the enactment of domestic legislation if it is satisfied with its existing legislative mechanism that the legislation in place are sufficient enough to tackle the menace. In this regard it is imperative to look and analyse the legislative mechanism in India aimed at the abolition of the system of ‘Devadasi’. Indian Constitutional and Legal Provisions relating to Women’s Rights
Indian Constitution contains several provisions relating to women and children. However equality and freedom has always been neglected in the name .of custom, honour, family welfare and social prestige. Equality that is guaranteed in the constitution of India is a dynamic one. While hoping for the ideal of equality, it does not recognise the realities of inequalities. Article 14 of the Constitution recognises equality before law for all citizens without any discrimination. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 15 (3) says about protective discrimination to women and children and Article 21 says about the protection of life and liberty to all.
The Constitution also ensures protection against traffic in human beings and forced labour. Art 42 says about provisions for just and humane conditions of work and maternity relief. The protection for women in the work place is given in factories Act 1948. It includes several welfare regulations and protective measures for women and children in working places, section 125 of criminal procedure code 1973 provides maintenance to women. Indian penal code Sections 509, 294 and 354 deals with Eve-teasing and sexual Harassment. The Indecent Representation Of women (protection) Act, 1986 for preventing the depiction of a woman in a manner which is derogating or denigrating to women, or which is likely to corrupt public morality through advertisement. Publications, writings, paintings, figures, or in any other manner. Indian Judiciary was also pro-active in guarding women’s rights in general. In some of the leading cases such as In State of u.P. v. Boden Sundara Rao the Apex Court came down heavily on the High Court of Andhra Pradesh for awarding grossly inadequate sentence in the following words:
“Crimes against women are c;m the rise. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to .the victim of the crime in particular and the society as a whole in general, but also at times encourages a criminal. The courts must not only keep in view the rights of the criminal but also the rights of the victim of a crime and the society at large while considering importance of appropriate punishment”.
In Vishaka v. State of Rajasthan. The Vishaka, an Organization working for the welfare of the women, moved toSC when a social worker was gangraped in Rajasthan. While deciding the case the Supreme Court brought the international conventions in Indian Law. How they are trying to incorporate it is very well understood from the words. . “Some Provisions in the CEDAW-Arts 11 and 24 as also general recommendations of CEDAW in this context-articles 11, 22, 23, 24 as ratified in the present context are of significant”.
According to the Supreme Court, “Sexual harassment” includes such unwelcome behaviour (whether directly or by implication) as: (i) physical contact or advances: (ii) a demand to request for sexual favours; (iii) sexllally co loured remarks; (iv) showing pornography; (v) any other unwelcome physical, verbal or non-verbal conduct of sexual behaviour.
Though the Indian system is quite effective in protecting the Women’s rights, it served limited purpose in protecting women who are Devadasi’s particularly from the Dalit community. Needless to say there were several legislations which prohibited this system and provided rehabilitation for the same.