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

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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).
Vol. 26, No. 2 Equal by Law, Unequal by Caste 335law enforcement and administrative machinery is itself constructed alongthe hierarchy of caste.Even if we were to assume that the state was both neutral andfaithful in its implementation of the law, we still must ask whether thelaw can be a vehicle for social change, or does it simply divert attentionaway from the social condition it masks and act as a safety-valve todiffuse pressure for real reform. Moreover, can the law take away thatwhich it did not create? If equality is understood as a value as opposedto a law, then can the state as a non-emotional body ever address it? 418Any program of affirmative action, no matter how broadly defined,implemented, and enforced, will not work to remove the underlyingprejudice as long as it conceives of “the oppressed” as its sole target.2. WHAT ABOUT THE “TOUCHABLES?”If the human rights framework is to be critiqued for presumingthat the state will ensure that the laws will trickle down, then it must alsobe scrutinized for setting its sites on those at the “bottom.” Thedownward trajectory of human rights sets its sights on the wrong targetand invariably assumes that the persona to be reclaimed is that of the“untouchable victim.” As noted by Ambedkar,It is usual to hear all those who feel moved by the deplorablecondition of the Untouchables unburden themselves by uttering thecry, “We must do something for the Untouchables.” One seldomhears any of the persons interested in the problem saying, “Let us dosomething to change the Touchable Hindu.” 419Affirmative action policies, as currently envisioned andadvanced, fail to sufficiently transform the racist or casteist hierarchyitself. And what of the fact that the very existence of these policies helpto strengthen and cement the very identities that we seek to fight against?418 On this point, noted Dalit journalist, Chandra Ban Prasad, poignantly asks:How can the State deal with issues of occupational and blood purity? Can the State,for instance, legislate and execute the idea that a certain percentage of Brahmans musttake to cleaning toilets and sweeping floors? Can it ensure that a certain percentageof Kshatriyas must marry Dalits? . . . . Why should we blame a bull for not givingmilk even after we fed it with that expectation?Chandra Ban Prasad, Markets and Manu: Economic Reforms and its Impact on Caste in India 15-16 (CASI Working Paper Series, 08-01, 2008), available at http://casi.ssc.upenn.edu/research/papers/Chandrabhan_2008.pdf.419 See S. Anand, On Claiming Dalit Subjectivity, http://www.india-seminar.com/2006/558/558%20s.%20anand.htm (relying on quote by B.R. Ambedkar) (last visited Aug. 16, 2008).
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