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

Vol. 26, No. 2 Equal by Law, Unequal by Caste 257castes,” 6 and includes an overview of constitutional provisions andprotective legislation aimed at abolishing “untouchability” practices andpromoting Dalits’ socio-economic development. It describes India’saffirmative action policy, wherein seats are constitutionally “reserved”for Dalits to ensure their proportional representation in federalgovernment jobs, state and local legislative bodies, the lower house ofparliament, and educational institutions.India’s legal affirmation of Dalits’ rights lays the foundation forreal social transformation. Yet despite formal protections in law,discriminatory treatment remains endemic and discriminatory societalnorms continue to be reinforced by government and private structures,often through violent means. 7 Much of the current scholarship on castein India has focused on the reservations policy. 8 Scant attention has beengiven to the corresponding under-enforcement of protective legislation orthe caste-based abuses committed by those entrusted with the role ofensuring that the “rule of law” trumps discriminatory societal practices. 9Part IV argues that India’s law enforcement machinery enforcesthe rules of the caste system, and not the “rule of law.” By depicting theculture of under-enforcement of laws and policy prescriptions, thissection seeks to counter the prevailing perception that constitutional andlegislative protections are in and of themselves sufficient to ensure basicprotections for India’s most marginalized citizens. Rather than ensuringbasic rights, the preponderance of such legislation acts as a patina tomask the daily reality of de facto segregation, exploitation, violence, andother forms of “untouchability” practices. This has discouraged furtherscrutiny into the condition of Dalits and other vulnerable groups whoremain outside the scope of basic protections.Part IV additionally offers insights into how and why theseprescriptions have failed to deliver on their promises. Specifically, itargues that casteism as a form of corruption and violence and as amechanism to entrench caste rules come together to effectively trump6789This Article does not explore other pervasive discrimination practices, including those that targettribal community members (in legal parlance “scheduled tribes”) and religious minorities inIndia.A GLOBAL CONCERN, supra note 1, at 2.See, e.g., E.J. Prior, Constitutional Fairness or Fraud on the Constitution? CompensatoryDiscrimination in India, 28 CASE W. RES. J. INT’L L. 63 (1996).But see William J. Eisenman, Comment, Eliminating Discriminatory Traditions Against theDalits: The Local Need for International Capacity-Building of the Indian Criminal JusticeSystem, 17 EMORY INT’L L. REV. 133 (2003) (arguing that the Indian government’sconstitutional protections of Dalits and many protective acts, though exemplary, have failed toresult in gains for Dalits because of ongoing local prejudice).Electronic copy available at: http://ssrn.com/abstract=1273803