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340 Wisconsin International Law JournalVI. CONCLUSIONThe law as a mechanism for achieving social change has fallendrastically short of delivering on its paper promise of ensuring equality.While legally sanctioned forms of caste-based discrimination have beenlargely abolished, discrimination and inequality persists, adapts, andeven thrives in environments seemingly hostile to its growth—environments that outlaw de jure discrimination and seek to ensure nondiscriminationand substantive equality through the availability ofconstitutional remedies, protective legislation, and social welfareprograms.As with other countries with a history of institutionalized orlegalized racism or casteism, the dismantling of de jure discriminationcomplicates the project of making visible ongoing and structural forms ofdiscrimination. India’s remarkable affirmation of Dalit rights throughconstitutional privileges and legislative protections is a double-edgedsword. On the one hand, it lays the foundation for real socialtransformation. On the other hand, it masks the daily reality of de factosegregation, exploitation, and other forms of abuse by discouragingfurther scrutiny into the condition of Dalits.The role of discourse in shaping and informing affirmativeaction policies and debates is in need of further examination. Despite thevirulence of racism and inequality in the world today, the categorizationof affirmative action as a program to address “historic” forms ofdiscrimination is accepted, seldom debated, and now increasinglycircumscribed. This Article offered a different scale of interrogation andforegrounds these debates in empirical realities and puts them inconversation with the struggle to achieve racial justice in the UnitedStates. A variety of formal mechanisms ranging from protectivelegislation to affirmative action policies have not penetrated the casteceilingin any real sense, and the market has not proved to be anequalizing mechanism. Despite a large body of legislation andadministrative agency mandates assigned exclusively to deal with theoppression of scheduled castes, the laws have benefited few anddevelopment programs and welfare projects designed to improveeconomic conditions for Dalits have generally had little effect.In order to effectively redress entrenched discrimination againstDalits and ensure their substantive equality, the testing of these formal
Vol. 26, No. 2 Equal by Law, Unequal by Caste 341mechanisms against their actual impact in promoting basic human rightsis a first and necessary step. This Article offered a bottom-up view ofhow the law operates, or is denied, in practice, and examined how therule of law lives in the shadow of the rule of caste. It concluded thatreservations are an attempt, however imperfect, to equalize opportunityin the face of a social structure that is antithetical to equality ofopportunity. Reservations create the possibility of a meritocracy in asystem that is functionally anti-merit. Yet conversations aboutaffirmative action stagnate around the question of whose disadvantagedeserves protection and for how long, and fail to ask who stands tobenefit from systematic social exclusion. Reservations alone constitutean insufficient remedy to the problem of caste discrimination in India.Controversy over the reservations scheme has also allowed the debate topredictably stagnate around the distribution of “privilege,” taking thefocus away from violations of basic rights.To say that the road that we are on will eventually get us to aplace where one’s race and caste will no longer be determinative of one’sclaims over resources or one’s very human personality is false. One’s“untouchable” status continues to act as a bar to material progress, accessto justice, and to development of human personality. The passage oftime has not witnessed discrimination’s elegant decline, but its sadisticentrenchment. Growing movements by Dalits to claim their basic humanrights and their human dignity are increasingly met with large-scaleviolence and attempts to further remove Dalits from economic selfsufficiency.While the stark disjuncture between constitutional vision andsocial reality quickly gives way to indignation, the call to action is stilldirected at the state, using top down approaches that assume a selfexecutingquality of the law. Human rights strategies must instead beinformed by the twin goals of remedying the effects of discriminationand dismantling the discriminatory mindset. Without the latter, theequality project will by definition remain incomplete.This Article has attempted to shift the debate on caste and offerbroader insights into the discursive role of the law in undermining realreform. Entrenched forms of discrimination stemming from the world’slongest surviving system of social hierarchy offer valuable lessons andcautionary tales applicable to the broader equality project. The first andmost obvious is to look beyond “race” as the only arbiter of rights. Thesecond is to look beyond the mere existence of affirmative action
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