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

328 Wisconsin International Law Journalways. 397 Ambedkar’s words apply with equal force to the corpus ofhuman rights law to which the UDHR has given birth and whichprohibits discrimination in its many forms and calls on the state to takepositive measures to ensure equality in effect. 398Nowhere is this tussle between law and social conscience morepronounced than in the context of caste. The caste system is inimical tohuman rights and to the vision of human equality as defined undervarious international instruments. Article 1 of the UDHR, thefoundational document of the international human rights legal regimeand the calling card of the international human rights movement,proclaims that, “[a]ll human beings are born free and equal in dignity andrights. They are endowed with reason and conscience and should acttowards one another in a spirit of brotherhood.” 399 By contrast, Dalits areborn unequal and slotted into a system of graded inequality wherein theinequality is so ingrained that Dalits themselves practice untouchabilityagainst other Dalits below them in rank.As Thorat notes, inasmuch as the caste system and the institutionof untouchability continue to govern social behavior in India, “it makesthe enforcement of human rights difficult, if not impossible.” 400 Thoratadds:The provisions in the Constitution and law are secular and equal butthe customary rules of the caste system and the institution ofuntouchability are based on the principle of inequality in social,economic, cultural and religious sphere . . . . People continued tofollow the latter because it provides immense privilege and servestheir social, political and economic interests. 401397 Sukhadeo Thorat, Hindu Social Order and Human Rights of Dalits, COMBAT LAW, available athttp://www.combatlaw.org/information.php?article_id=109&issue_id=4 (last visited Aug. 16,2008).398 International treaties that proscribe discrimination and mandate equal protection include theInternational Covenant on Civil & Political Rights, arts. 2(1) and 26, Dec. 16, 1966, 999U.N.T.S. 171; International Covenant on Economic, Social & Cultural Rights, art. 2(2), Dec. 16,1966, 993 U.N.T.S. 3, International Convention on the Elimination of All Forms of RacialDiscrimination, Mar. 7, 1966, 660 U.N.T.S. 195; and the Convention on the Elimination of AllForms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13. These conventionspreclude States from taking deliberately discriminatory measures and also outlaw apparentlyneutral measures that have the effect of unjustifiably imposing disproportionate burdens onparticular groups. Further, they embody a substantive notion of equality that may require Statesto take tailored measures of positive discrimination in order to remedy disadvantage suffered bycertain groups.399 Universal Declaration of Human Rights, art. 1, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen.mtg., U.N. Doc. A/810 (Dec. 12, 1948).400 Thorat, supra note 397.401 Id.