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

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330 Wisconsin International Law Journalthe greater caste structure; rather he or she is socially constructed inorder to ensure “upper-caste” privilege. Privileges or rights assigned ordenied to a particular caste are determined by that caste’s relationship toother castes. The question human rights lawyers must therefore startasking is not simply who is disadvantaged by discrimination, but whostands to benefit from it.Even with its inherent limitations, a faithful application of theConstitution of India—as human rights and constitutional scholar,Upendra Baxi, reminds us—would be a recipe for complete socialrevolution. 405 According to Jacobsohn, Baxi sees India as having both awritten and unwritten constitution where the written is the social justiceideology of the document, while the unwritten is the “antireformideology of the privileged classes and castes, who, [Baxi] argues, havebeen quite successful in entrenching their version as constitutionalorthodoxy.” 406Defenders of each system have burned the words of the other ineffigy: just as medical students burned the writings of Dr. Ambedkar inanti-reservation protests in 2006, in 1927, Ambedkar set fire to the ManuSmriti, the ancient Hindu law book that Ambedkar believed sanctifiedand authorized the cruel treatment of Dalits. 407 Both acts seek toannihilate that which symbolically stands between those who areaggrieved and that which they seek. For anti-reservations protestors,Ambedkar and his thoughts are the embodiment of undeserved Dalit“privilege,” while for Dalits, the Manu Smriti stands in as the veritableBrahmin Bill of Rights.Even acts of simple revolution like the decision to extendreservations to include other “lower-caste” categories have contributed tothe resurgence of the Hindu Nationalist movement in India. 408 Themovement’s emphasis on cultural nationalism is seen as both an attemptto unite Hindus under one cultural, nationalistic banner and as an405 See UPENDRA BAXI, COURAGE, CRAFT AND CONTENTION: THE INDIAN SUPREME COURT IN THEEIGHTIES (1985).406 JACOBSOHN, supra note 402, at 233–34. See also Teltumbde, supra note 152, at 12: “The sorrystate of the executive compliance with . . . constitutional provisions amply bears out the fangs ofthe intrinsically iniquitous Indian society.”407 S. M. MICHAEL, UNTOUCHABLES: DALITS IN MODERN INDIA 58 (1999).408 See JACOBSOHN, WHEEL OF LAW, supra note 402, at 154 (describing the connection between theMandal Commission recommendation to extend reservations to “Other Backward Castes” andthe Hindu Nationalist campaign to demolish the Babri mosque and erect a Hindu templededicated to the Lord Ram in its place).
Vol. 26, No. 2 Equal by Law, Unequal by Caste 331effective means of “maintaining the status quo in social and economicprivilege.” 409The success of the anti-reform project is so profound that lawsare openly and confidently flouted by those who wear their “upper-caste”status as a badge of superiority and preach the virtues of caste toaudiences full of reverence. Rules of caste come pouring out of themouths of school children who learn from a very young age that thesenorms must be obediently followed, 410 while families openly andexclusively court marriage proposals (in India and abroad) from familiesof the same caste. 411Any project of social transformation, whether rooted in thelanguage of human rights, human dignity, or in the language of equality,must set its sights on the twin goals of eliminating inequality anddiscrimination wherein discrimination is understood not simply as a legalterm but as a hierarchical mindset that allows race- or caste-based abusesand inequalities to comfortably and openly flourish. Instead of reachingfor these twin goals, we have arrived at a moment where socialtransformation and mobilization is subordinated to imperfect judicial andlegislative action and affirmative action policies are narrowly definedand easily defeated under the rubric of liberalism.The conventional strategies adopted thus far do little to countersuch a mindset, which in turn ensures the failure of even the mostaggressive legal and economic approaches to achieve equality. Asindicated in Part IV, the constitution and the law remain paper tigers withlittle effect; economic growth has been unevenly distributed along castelines; reservations, already limited in their reach, increasingly offerdiminishing returns; and the broader affirmative action project threatensto be defeated, ironically, using the nomenclature of rights and equalprotection.409 CHRISTOPHE JAFFRELOT, THE HINDU NATIONALIST MOVEMENT IN INDIA 431 (1996).410 INDIA UNTOUCHED, supra note 83. Through candid interviews with oppressors and oppressedalike, this documentary provides a stark exploration of the rigidity with which people hold theirperceptions of caste positions and untouchability.411 Typical examples of matrimonial classified advertisements from Indian national newspaper THEHINDU include: “HINDU PALLAR 26/161 MCA S/W CTS Chn wheatish, seeks well employedgroom same caste;” “TIRUNELVELI SAIVA Pillai 29/170 DME Purattathi Business-SoftwareTraining Centres seeks Suitable Alliance from Same Caste.” The online matrimonial ad serviceShaadi.com allows browsing by caste. See SHAADI.COM,http://www.shaadi.com/matrimonials/indian-castes (last visited Aug. 16, 2008). See also MosesSeenarine, The Persistence of Caste and Anti-Caste Resistance in India and the Diaspora,http://tamilelibrary.org/teli/caste1.html (last visited Aug. 16, 2008).
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