equal by law, unequal by caste - International Dalit Solidarity Network

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266 Wisconsin International Law JournalIn both countries, caste- or race-based stigma has not beenerased by upward class mobility. 49 Even for the minority of Dalits whohave managed to defy their religiously proscribed economic lot, socialoppression has not fallen away. As poignantly noted by a Dalit surgeon,It is India’s most shameful paradox—this country has made almostunimaginable progress in nearly every sphere of human life, but theone thing unchanged is the condition of its dalits and backwardcommunities. I am a microsurgeon specialising in hand and spinalreconstruction, and am [a Member of Legislative Assembly] fromBihar, but I still remain very much a dalit—a dhobi, to be precise—open to routine humiliation from the upper castes. 50The inter-category diversity among Dalits that comes about as aresult of the creation of a new Dalit middle class is cited not as thesuccess of affirmative action that it represents, but as the reason to nowdefeat the affirmative action project. Class operates in both countries asa displacement strategy. And in both countries the criminal justicesystem and its application to particular groups suffers from the twinmalaise of over- and under-enforcement. Dalits are routinely rounded upfor crimes committed in their vicinity, 51 yet summarily ignored whenthey themselves are the victims of abuse. 52Like the United States, India’s social transformation project isstunted by its increasing dependency on courts as a source of redress; itsrecourse to the legislature and courts is seen as the dominant avenue forsocial reform. The disproportionate focus on proportionalrepresentation—or policies that aim to increase the representation ofmarginalized groups in the legislature, institutes of higher education, andnow the private sector—is where this conversation gets debated anddefeated. 53 Left out of consideration is the broad range of possible race-4950515253As Derrick Bell argues in relation to racism in the United States, “[w]hatever our status, we arefeared because we might be one of ‘them.’” Derrick Bell, The Racism Is Permanent Thesis:Courageous Revelation or Unconscious Denial of Racial Genocide, 22 CAPITAL U. L. REV. 571,581 (1993).Ramsunder Ram Kanauija, Surgeon Second, Dhobi First, TEHELKA, Feb. 3, 2007, available athttp://www.tehelka.com/story_main26.asp?filename=Cr020307Shadow_lines.asp (last visitedAug. 15, 2008).HIDDEN APARTHEID, supra note 5, at 28.Id. at 33-34.Journalist and social commentator P. Sainath notes: “In the media, any debate on Dalit rights isabout reservation, and not about water, health, sanitation or land rights. In the minds of themedia audience, we have created a stereotype that Dalit is equal to reservation, which is takenout of the context of all these other deprivations.” He adds that the growing trend of using thelanguage of equality and meritocracy to oppose reservations represents a “‘repackaging’ ofcasteism and caste stereotypes.” Trend of repackaging casteism growing, THE HINDU, Dec. 7,
Vol. 26, No. 2 Equal by Law, Unequal by Caste 267or caste-conscious measures that exist on paper but are neglected orundermined in practice. Even more neglected is the work that must bedone on both continents to dismantle the racist and casteist mindsets thatfuel the discrimination and generate inequality.The social transformation project—that began in India withadoption of the constitution in 1950, and in the United States with thecivil rights struggle leading up to and following the landmark case ofBrown v. Board in 1954—has left some with greater opportunity andpolitical mobility but has “transformed” little. The “Dalit ordeal” is anexample of a comprehensive legal framework with little to no execution.The “African-American ordeal” is an example of an emasculated legalframework that sees little hope of revival. The gap betweenconstitutional vision and social reality is therefore far greater in Indiawhere the progressiveness of the constitution and the broader legalframework is belied by its almost complete under-enforcement. The ruleof law lives in the shadow of the rule of caste. Though crafted as abulwark against caste discrimination, the juxtaposition of egalitarianlaws against an inherently unequal system acts as an open invitation tofrustrate constitutional intentions.As a case study, the condition of Dalits in India brings into clearview the limitations of the law and economic growth as antidotes toinequality. India’s high levels of poverty concentrated among particularsocial groups, its epidemic of violence meted out in the name ofupholding caste-based norms and traditions, and the prevalence of Dalitsegregation, exploitation, and untouchability as the rule, rather than theexception, all expose the ways in which discrimination wears poverty asits mask.Poverty is deceptive. It makes one conclude that all suffer fromit equally. Poverty also masks a lack of political will to change the statusquo by shifting the debate to a lack of resources. But a closer look atIndia’s poverty reveals the discrimination inherent in the allocation ofjobs, land, basic resources and amenities, and even physical security. Acloser look at victims of violence, bonded labor, and other atrocities alsoreveals that they share in common the lowest ranking in the caste order.Poverty in India is, of course, not limited to Dalits, but as is the case withAfrican-Americans in the United States, if you are a Dalit in India, you2007, available at http://www.hindu.com/2007/12/07/stories/2007120759081200.htm (lastvisited Aug. 15, 2008).
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