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

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296 Wisconsin International Law Journalshown below, the rights enshrined in the constitution and implementedthrough a plethora of legislation are not meant to serve them. As victimsof both over- and under-enforcement of the law, Dalit existence isdefined by the extremes of brutality and neglect.A. POLICE BRUTALITY AGAINST DALITSIndia’s National Human Rights Commission (“NHRC”)—a bodythat India characterizes as the apex national institution to protect humanrights and redress grievances 226 —has characterized the law enforcementmachinery as the greatest violator of Dalits’ human rights. 227 Accordingto the NHRC, custodial torture and killing of Dalits, rape and sexualassault of Dalit women, and looting of Dalit property by the police “arecondoned, or at best ignored.” 228Under a theory of collective punishment, the police will oftensubject entire Dalit communities to violent search and seizure operationsin search of one individual. 229 Dalit communities may also be perceivedby the police as inherently criminal. 230 Dalits and other poor minoritiesare disproportionately represented among those detained and tortured inpolice custody because most cannot afford to pay police bribes. 231 Policeofficers’ deeply embedded caste bias (most officers belong to the “uppercastes”) 232 and a general lack of familiarity with legislative protectionsfor Dalits further compound the problem. 233 Dalits, including thosearrested for minor offenses, are often held in custody for long periods oftime, occasionally at distant and isolated locations to avoid publicity, 234where they are frequently deprived of food and water, subjected to verbalabuse and humiliation, severe beatings, sexual perversities, anddemeaning acts. Often the injuries inflicted can prove fatal. 235226 U.N. Comm. on the Elimination of Racial Discrimination [CERD], Reports Submitted by StatesParties under Article 9 of the Convention 155, U.N. Doc CERD/C/IND/19 (Mar. 29, 2006).227 NHRC REPORT, supra note 110, at 130.228 Id. § VI, at 130.229 Id. at 116.230 Id. at 116-17.231 BROKEN PEOPLE, supra note 21, at 127.232 NHRC REPORT, supra note 110, at 118.233 Id.234 S. Vishwanathan, A Tale of Torture, FRONTLINE, Aug. 2-15, 2003, at 61, available athttp://www.hinduonnet.com/fline/fl2016/stories/20030815002504800.htm (last visited Aug. 15,2008).235 NHRC REPORT, supra note 110, at 114.
Vol. 26, No. 2 Equal by Law, Unequal by Caste 297Dalit activists are also accused of being “terrorists,” “threats tonational security,” and “habitual offenders,” and frequently chargedunder the National Security Act, 1980, the Terrorist and DisruptiveActivities (Prevention) Act, 1985 (“TADA”), and even older counterinsurgency laws such as the Indian Explosives Act, 1884. 236 Dalitactivists are often subjected to specious prosecutions, falsified charges,and physical abuse and torture following arrest. 237B. A CULTURE OF UNDER-ENFORCEMENTMedia, non-governmental, and official reports reveal that thepolice have systematically failed to protect Dalit homes and Dalitindividuals from acts of looting, arson, sexual assault, torture, and otherinhumane acts such as stripping and parading Dalit women and forcingDalits to drink urine and eat feces. 238According to legal scholar Alexandra Natapoff, underenforcementas a phenomenon “deserves a more central role in theevaluation of the evenhandedness and democratic legitimacy of thecriminal system.” 239 Though articulated in the context of the UnitedStates, her conclusion, that under-enforcement “offers important insightsinto the government’s relationship with vulnerable groups in the contextof the criminal system,” 240 is equally applicable to the Indian context. AsNatapoff contends,Over- and under-enforcement are twin symptoms of a deeperdemocratic weakness of the criminal system: its non-responsivenessto the needs of the poor, racial minorities, and the otherwisepolitically vulnerable. Because of this weakness, justice andlawfulness are distributed unevenly and unequally across racial and236 Id.237 BROKEN PEOPLE, supra note 21, at 153. For a detailed discussion of the over-enforcement of thelaw against vulnerable groups in India, in particular draconian anti-terrorism and security laws,see Anil Kalhan et al., Colonial Continuities: Human Rights, Terrorism, and Security Laws inIndia, 20 COLUM. J. ASIAN L. 93, 109 (2006), available at http://ssrn.com/abstract=970503 (lastvisited Aug. 15, 2008). Kalhan notes at 109, 147 and 173 that the Terrorist and DisruptiveActivities (Prevention) Act, 1985, and the Prevention of Terrorism Act, 2002, have beenselectively enforced against members of Dalit and other disadvantaged groups, both in order toprosecute offenses unrelated to terrorism, and to extort and illegally arrest and detain members ofthese groups.238 HIDDEN APARTHEID, supra note 5, at 9.239 Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV 1715, 1717 (2006).240 Id. See also RANDALL KENNEDY, RACE, CRIME AND THE LAW 19 (1997) (arguing that “theprincipal injury suffered by African-Americans in relation to criminal matters is notoverenforcement but underenforcement of the law.”).
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