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

334 Wisconsin International Law Journal“weapons” in the arsenal against caste discrimination (education, selfempowerment,and democracy), the laws are nowhere to be found.By contrast, the notion that the state must take positive action toensure substantive equality finds increasing traction in international andregional human rights law. 416 So what role do we give the state? At thevery least, we expect the state to remedy the effects of discriminationthrough the implementation of broad-based policies that seek to outlaw,punish, and provide redress for acts of individual discrimination, whilesimultaneously correcting or alleviating manifestations of structural andongoing discrimination that are rooted in a historic legacy of legallysanctioned subordination on the basis of caste or race.The role of positive state action, defined in this case as any raceor caste-conscious measure under the broader rubric of affirmativeaction, will at its best be to remedy the effects of racism and casteism.Though affirmative action may be seen as removing the effects ofcumulative and structural discrimination that result in race or caste-basedinequality, as currently conceived and operationalized it does not dealwith the root of the discrimination itself, which stems from a casteistmindset that does not question, legally or otherwise, the Brahminichierarchy. 417 Nor does it sufficiently consider that the state itself is farfrom a neutral actor.The plight of Dalits in India serves to highlight the paradoxicalrole of the state in a society that is, in its natural state and left to its owndevices, inherently unequal. The role of the state in such a context is toinstitutionalize checks and balances and intervene against the naturalinclinations of the dominant groups for the protection of the dominated.But reaching for the state lands us in a double bind: without governmentintervention, the system could not dismantle itself, but we incorrectlyassume that the state is a neutral actor. As shown in Part IV, the state’s416 See Theodor Meron, The Meaning and Reach of the International Convention on the Eliminationof All Forms of Racial Discrimination, 79 AM. J. INT’L L. 283, 286 (1985); Kevin Boyle &Annaliese Baldaccini, International Human Rights Approaches to Racism, in DISCRIMINATIONAND HUMAN RIGHTS: THE CASE OF RACISM 156 (Sandra Fredman ed., 2001).417 Similar arguments have been offered in relation to the role of white supremacy in the UnitedStates. Affirmative action may redress social inequalities but it cannot of itself change minds, aswhite supremacy persists in the form of “color-blind racism,” an attitude held by precisely thosewho oppose “positive discrimination.” See EDUARDO BONILLA-SILVA, RACISM WITHOUTRACISTS: COLOR-BLIND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITEDSTATES (2003). In what Bonilla-Silva calls the “whiteness of color-blindness,” an insistenceupon abstract equality of opportunity, belying actual inequalities, is a commonsense gloss over asubconscious belief in the superiority of whiteness—of property in whiteness that must bepreserved, to the exclusion, and in turn subordination, of other group racial identities. Id. at 177.See also Cheryl I. Harris, Whiteness as Property, 106 HARV. L. R. 1710, 1761 (1993).