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

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304 Wisconsin International Law Journalthe police and the judiciary owe their caste loyalty and who have avested (karmic and economic) interest in keeping the system in place.Those who are brutalized represent individuals who are simply meant tobe treated that way.Just as police officers refuse to register complaints brought byDalits, Dalits as complainants “are often treated with indifference bylocal judges.” 277 The caste composition of the police and the judiciary isa significant part of the impunity equation. Dalits are severely underrepresentedin the higher ranks of the police, the prosecutors, and thejudiciary. The reservations regime, discussed below, does not extend tothe judiciary 278 —with the result that, in 2002, the Supreme Court hadonly one Dalit out of twenty-six judges, while the High Courts had 25Dalits out of 625 positions. 279 In January 2007, that Dalit judge, JusticeK.G. Balakrishnan, became the first Dalit to rise to the position ofSupreme Court Chief Justice. 280 According to recent studies based onavailable data, 47 percent of India’s Chief Justices and 40 percent of allother judges have been “high-caste” Brahmins, who constitute only 6.4percent of the population. 281Caste discrimination also does not cease once a Dalit isappointed to a judicial position, as discriminatory attitudes prevail amongjudges themselves. The depth of anti-Dalit sentiment in the judiciary isparticularly well illustrated by an incident that took place in July 1998 inthe state of Uttar Pradesh, where, as the Times of India reports, anAllahabad High Court Judge had his chamber “purified with Ganga jal”(water from the River Ganges) because it had earlier been occupied by aDalit judge. 282277 Eisenman, supra note 9, at 167.278 The National Human Rights Commission has recommended that the government identifyinstitutions that have not accepted reservations—including the judiciary and defense forces—anddevelop measures to ensure that Dalit candidates have the opportunity to compete for thesepositions. NHRC REPORT, supra note 110, at 141. Supporters of such a proposition point to theabysmal rate of convictions for offenses against Dalits highlighted above which stem in partfrom the anti-Dalit bias of the judiciary. The chairman of the National Commission onScheduled Castes has also recommended that reservations be extended to the judiciary. GrantSC/ST Quotas in Judiciary: Buta, THE HINDU, Jan. 20, 2008, available athttp://www.hindu.com/thehindu/holnus/002200801201965.htm (last visited Aug. 16, 2008).279 President’s No on Chhattisgarh Judges, INDIAN EXPRESS, Feb. 3, 2002.280 Balakrishnan to be CJI, INDIAN EXPRESS, Dec. 23, 2006, available athttp://www.indianexpress.com/story/19176.html (last visited Aug. 15, 2008).281 Balakrishnan Rajagopal, The Caste System—India’s Apartheid?, THE HINDU, Opinion, Aug. 18,2007, available at http://www.hinduonnet.com/2007/08/18/stories/2007081856301200.htm (lastvisited Aug. 15, 2008).282 BROKEN PEOPLE, supra note 21, at 24.
Vol. 26, No. 2 Equal by Law, Unequal by Caste 305When the law enforcers become the criminals and the judiciarytreats its own colleagues with untouchable contempt, then something farmore insidious is at play. The police, and in some cases the judiciary, donot owe their allegiance to the rule of law, but to caste. Casteism mustthen be viewed as a form of corruption, and a force that invitescorruption, rather than something separate from it. Those who occupy avariety of positions in the public administration—from the police, toprosecutors, to district collectors, to judges, and to governmentbureaucrats responsible for implementing social welfare programs—areso deeply entrenched in the casteist mindset that the system cannot beanything but corrupt and the state is anything but neutral. The brutalityand apathy of state agents is matched by the brutality of the dominantcastes. This could only be so if they were one and the same.D. VIOLENCE AS CASTE ENTRENCHMENTIn India’s perennial struggle between the rule of law and the ruleof caste, violence is the trump card that ensures the rule of caste alwayswins out. Violence against Dalits in India has reached epidemicproportions. Between 1992 and 2005 a total of 398,644 cases involvingcrimes against Dalits were registered throughout the country. 283 Theseinclude the crimes of murder, rape, kidnapping, robbery, and arson,among others. 284 Police statistics averaged over the past five yearsindicate that every week 13 Dalits are murdered, 5 Dalit homes (orpossessions) are burned, 6 Dalits are kidnapped or abducted, and thatevery day 3 Dalit women are raped, 11 Dalits are assaulted and a crime iscommitted against a Dalit every eighteen minutes. 285As noted above, these statistics represent only a fraction of theviolence committed against Dalits. A lack of police cooperation(including denying Dalits entry into police stations), fear of reprisals,systematic non-registration or improper registration of atrocities cases,and additional failures of investigation have all contributed to283 Press Release, National Campaign on Dalit Human Rights, Strengthening Civil SocietyInitiatives for Upholding Dalit Human Rights (Dec. 12, 2007) (on file with author).284 Id. Between 2001 and 2002, close to 58,000 cases were registered under the Prevention ofAtrocities Act. MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, supra note 247, at 9-10.285 Derived from figures provided in NATIONAL CRIME RECORDS BUREAU, MINISTRY OF HOMEAFFAIRS, CRIME IN INDIA (2005) 295, available at http://ncrb.nic.in/crime2005/cii-2005/CHAP7.pdf. See also CHALAM, supra note 171, at 81 (“[T]he numbers of murders wasreported to be 430 in 1979 and they have increased to 506 (only recorded) by 1999. The totaloffences against Dalits, including rape and arson, have doubled from 13,976 in 1979 to 25,093 in1999. This shows the criminal intolerance against Dalits in India.”).
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