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

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336 Wisconsin International Law JournalAffirmative action may alleviate inequality but it will not breakdiscrimination, and in the process may end up strengthening thediscrimination itself by cementing identity formation along racial orcaste lines.Affirmative action (whether under the mantle of the constitutionor human rights law), must be conceived in a way that is compatible withthe goal of social transformation while recognizing that affirmativeaction, as currently constructed, is a necessary but insufficient tool forsocial transformation. The gap between affirmative action and socialtransformation can perhaps be overcome to some extent by reframingaffirmative action policies to reflect the salient fact that rights andprivileges are negotiated, assigned, and denied not just in the courtroom,the police station, or even the legislature, but in non-formal social spaceswhere “upper-caste” privilege and “upper-caste” rights are rarelycontested on legal or moral grounds. According to Thorat:Non-formal institutions; social, religious as well as economic,involve a framework of social behavior of their own, which may notbe in consonance with the principles enunciated by the UnitedNations, or the Constitution of a nation in which case different sets ofvalues may result in conflicts. It implies that unless inequalitiesimbedded in the social, economics and cultural structure of the Hindusociety are addressed, the legal measures will make little differencein providing access to human rights to the dalits in India. 420The caste system may be understood as an example of whatcritical theorist Michel Foucault termed disciplinary power. 421 Viewed inthis light, caste oppression can be seen as inhering in diffuse powerrelations that arise out of socially entrenched practices (includingdiscourse) which have become the “norm.” These practices “discipline”individuals by imposing categorized identities on them and others, andset those categories within a hierarchy. 422 Foucault argued that the liberalconception of rights was useless as a means of resisting disciplinarypower, as it conceived of domination as negative repression by the state,thus overlooking the identity-constructing effect of disciplinary powerrelations which do not emanate from a single, central source, but pervadeall of society. 423 He argued for a “new form of right” that concerns itselfnot with setting limits on state intrusions against the private autonomy of420 Thorat, supra note 397.421 MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan trans.,2nd ed. 1995).422 Id. at 183.423 Id. at 191.
Vol. 26, No. 2 Equal by Law, Unequal by Caste 337an abstract subject, but altering the constructive effects of disciplinarypower. 424 Ambedkar was keenly aware of the necessity of a solution thatconfronted caste as a constructive power of this kind; as he saw it, casteas a discipline was rooted in religious ideology and he made an effort totackle it at the level of discourse. 425Among Ambedkar’s most salient contributions was to define thecaste system as not simply a division of labor, but a division of laborersthat is neither spontaneous nor based on natural aptitudes, and whichprevents mobilization because of the system of graded inequality inwhich it inheres. 426 Perhaps the greatest threat comes not from those whooppose affirmative action or Dalit rights, but from the internalization ofthe mentality of graded inequality. “Untouchability” among“untouchables” is a well-documented practice, seen especially in thetreatment of manual scavengers by other Dalits. 427 As noted in theMandal Commission Report, “[t]he real triumph of the caste system liesnot in upholding the supremacy of the Brahmin, but in conditioning theconsciousness of the lower castes in accepting their inferior status in theritual hierarchy as part of the natural order of things.” 428While the task of mobilizing Dalits to claim a uniform Dalitidentity in place of the hierarchical structure they inherited and impose isongoing, the impetus does not and cannot come from the state. The stateand any actor tasked with the project of translating the human rightsvision into reality must set its sights on the (un)consciousness of theprivileged castes. Yet what program exists to ameliorate the patheticmentality of the bigot? Once the “touchable” condition is problematized,then perhaps the quotas would apply to them leaving the remainder andmajority of seats and positions open to the majority of the nation.3. THE ECONOMY OF HUMAN RIGHTS IN THE FREE MARKETAn over-reliance on the law and the state has rendered otherpaths and options for the realization of human rights virtually obsolete.While the state must continually be held accountable vis-à-vis its424 MICHEL FOUCAULT, Two Lectures, in POWER/KNOWLEDGE 108 (Colin Gordon ed., 1980).425 See B. R. AMBEDKAR, WHO WERE THE SHUDRAS? 436-41 (Thackers 1970) (1946).426 AMBEDKAR THOUGHT, supra note 19, at 26.427 BROKEN PEOPLE, supra note 21, at 146.428 As quoted in James Massey, Reflections and Remarks—Occupation and Descent-BasedDiscrimination: Identification of Affected Communities in Various Countries (Presented at theGlobal Conference Against Racism and Caste-Based Discrimination, New Delhi) (Mar. 2001)(on file with author).
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