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

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260 Wisconsin International Law JournalThe Indian government has taken great pains to insulate itselffrom international scrutiny by repeatedly pointing out that this is notdiscrimination based on race, as though such confirmation nullifies theabuse in question. 17 Their protests ignore the fact that the prohibition of“racial discrimination” under international law, and in particular theInternational Convention on the Elimination of All Forms of RacialDiscrimination, Article 1, applies to discrimination on the basis ofdescent. 18 Regardless of how the abuse is defined, its noxious andpervasive character should be sufficient to invite international attentionand condemnation.Though scholars have pointed to the racial dimensions of caste,this is not a Black and White issue, or a clear Black and Brown issue.The caste system is one of graded inequality that invites people to sharein the spoils of iniquity even as they suffer from it. 19 By offeringindividuals a rank in a pecking order, the system strengthens itself andkeeps the equality revolution at bay.India is also an example of injustice in the extreme: the numbersaffected are greater, the poverty is deeper, the atrocities are an every dayaffair, and enforced servitude and segregation is the norm. Thepopulation of Dalits equals more than half the population of the UnitedStates. 20 A majority of Dalits live on less than US$1 per day. 21 Everyweek, thirteen Dalits are murdered and five Dalit homes are destroyed. 22Three Dalit women are raped and eleven Dalits are assaulted everyday—a crime is committed against a Dalit every eighteen minutes. 23Aspects of the contemporary Dalit reality therefore find greaterresonance with the 1950s American South, American slavery, and, as17181920212223See, for example, the response of the Indian government to the U.N. Committee on theElimination of Racial Discrimination’s request that the government submit information on issuespertaining to Scheduled Castes and Scheduled Tribes. India’s periodic report stated that “‘caste’cannot be equated with ‘race’ or covered under ‘descent’ under Article 1 of the Convention.”Government of India, Fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth periodicreports of the Republic of India, due on January 4, 1998, 2000, 2002, 2004, and 2006 submittedin one document on January 26, 2006, CERD/C/IND/19, 16 (Mar. 29, 2006).International Convention on the Elimination of All Forms of Racial Discrimination art. 1, Jan. 4,1969, 212 U.N.T.S. 216 (regarding descent).AMBEDKAR THOUGHT 74 (Pandiri Anjaiah & Durgam Subba Rao eds., 2005).The population of Dalits in India is 167 million, while the population of the United States isaround 304 million. See U.S. Census Bureau, U.S. POPClock Projection, available at:http://www.census.gov/population/www/popclockus.html (last visited Aug. 14, 2008).SMITA NARULA, BROKEN PEOPLE: CASTE VIOLENCE AGAINST INDIA’S “UNTOUCHABLES” 2(Human Rights Watch, 1999) [hereinafter BROKEN PEOPLE].See infra note 285.Id.
Vol. 26, No. 2 Equal by Law, Unequal by Caste 261noted above, South Africa under apartheid. But, as discussed below, anumber of contemporary commonalities do exist.The cross-fertilization of ideas between India and the UnitedStates on approaches to ensuring equality is not new, nor is itsurprising. 24 As two of the world’s largest democracies and as commonlaw countries with a profound history of de jure discrimination, India andthe United States have learned much from one another. The verylanguage of the Indian Constitution borrows heavily from the U.S.Constitution. 25 During his time at Columbia University, Dr. B.R.Ambedkar—architect of the Indian Constitution—was inspired by suchlegal constructs as the Fourteenth Amendment. As written by onecommentator: “Ambedkar’s revolution for the emancipation ofuntouchables was significantly influenced by American ideals ofequality.” 26 In 1947, the constitutional drafting committee’s advisor B.N. Rau visited the United States and solicited the views of leadingAmerican judges and scholars. 27 Almost every fundamental right in theConstitution of India finds its corollary in its American counterpart. 28Moreover, according to some scholars, the process of drafting theConstitution of India took into account not only the textual wording ofthe American provisions, but also the eventual interpretation of thoseprovisions offered by American courts. 29Both countries also continue to be mired in the politicallycharged debate around affirmative action as either a suitable remedy to242526272829See K.P. Singh, Liberation Movements in Comparative Perspective: Dalit Indians and BlackAmericans, in DALITS IN MODERN INDIA: VISION AND VALUES (S.M. Michael ed., 2nd ed. 2007)(describing similarities in the historical evolution of Dalit and African-American struggles andarguing that both struggles have evolved from acquiescent movements to protest movements thathave founded their most far-reaching emancipatory visions on the notion of civil rights as acounter to inequality.).PRATAP KUMAR GHOSH, THE CONSTITUTION OF INDIA: HOW IT HAS BEEN FRAMED 70 (1966).M. Varn Chandola, Affirmative Action in India and the United States: The Untouchable andBlack Experience, 3 IND. INT’L & COMP. L. REV. 101, 118 (1992). See Eleanor Zelliot, Dr.Ambedkar and America, Address at the Columbia University Ambedkar Centenary, 1991,availableathttp://www.columbia.edu/itc/mealac/pritchett/00ambedkar/timeline/graphics/txt_zelliot1991.html (last visited Aug. 14, 2008).Soli J. Sorabjee, Equality in the United States and India, in CONSTITUTIONALISM AND RIGHTS:THE INFLUENCE OF THE UNITED STATES CONSTITUTION ABROAD 96 (Louis Henkin & Albert J.Rosenthal eds., 1990).INDIA’S LIVING CONSTITUTION: IDEAS, PRACTICES, CONTROVERSIES 251 (Zoya Hasan, EswaranSridharan & R. Sudarshan eds., 2005).Robert B. Charles, Special Project, American Influence on the Indian Constitution: Focus on theEqual Protection of the Laws, 17 COLUM. HUM. RTS. L. REV. 193, 202 (1986).
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