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Caste, Crime and the Constitution

By Archisha Chowdhury, Jindal Global University

The ancient ‘caste’ regulated societal norms. It carried forth a division of labour and imposed rules of social conduct such as endogamy, untouchability and other practices. It reproduced socially, the economic rank of an individual. This system, its prescribed ranks, and its inequalities oppress and discriminate today, rationalized as tradition. Foregoing its predetermined status has been a struggle for many, that is yet to be solved. A low caste-status today also brings with it the vulnerability of being victim to acts of violence. Such acts range from subtle inequalities like drinking from separate wells to the aggressive crimes of rape and murder. The law, and its formal structures in society, vow to provide equality, freedom and social justice to such minorities. Further, the state has codified rules prohibiting and protecting against acts of caste violence. However, the marginalized remain. This article attempts to understand how such structures interact with and shape the contemporary reality of caste minorities in India. Further, it tries to reason out the shortcomings of the law in doing so.

Caste as an institution has been historicized, not only in its doctrine of purity and pollution; but also, in the social reproduction of inequalities—in rank, access to economic resources and knowledge—that it codifies. Ambedkar defined the system in terms of the dignity and power it distributed, as a ‘graded inequality in which castes are arranged according to an ascending scale of reverence and a descending scale of contempt’. As you went up the caste order, your privilege and power increased while as you went down, the degree of contempt and hatred towards you rose. This hierarchy was built in relativity. A higher caste was ascribed the power to oppress any and all castes below it. Violence and coercion played a significant role in the functioning of this brahmanical system. As Chakravarti says, “Even today, especially in rural India, the caste system hinges on the power to enforce caste-based obligations, to the privileged upper castes, by the dominant caste of the area.” This dominance, was based on wealth and ownership of land, which also gave the dominant caste access to power. Marginalized communities have been subject to pronounced acts of violence ever since.

The colonial rule, despite its attempts, failed to eradicate caste. With the advent of a new Constitution and its liberal framework, however, there emerged a new found hope for minority castes. It promised them not just individual autonomy, equality, liberty and rights but protection of their self-respect and dignity. It vowed to them an equal status in society. But this promise was unfulfilled. As Guru argues, for the majority, democracy in pre-independence India was enmeshed with notions of nationalism. The liberal form here, translated into the emotion of national pride that the British had snatched from them. Its nationalist imagination relied on overcoming the humiliation of the colonial rule and reinforcing an identity of self-rule and pride within the democracy. Minority groups, with a separate notion of nationalism, were doubtful of the capabilities of such a democracy in conferring a ‘socially’ equal status to all. In fact, “Dalits led by Ambedkar believed that the socially dominant sections would hijack independent India and manipulate liberal democracy in order to consolidate and expand their own power through the reproduction of the old hierarchical order that placed Dalits at the bottom.” Further, a national identity was built based on Hindu chauvinism which dominated minority notions. Though this framework may have avowed individual rights for marginalized castes, it failed to ascribe to them equality in the eyes of those hierarchically above them. Under the garb of nationalist intention, liberal principles failed to socially translate.

The making of the constitution was a historically significant period for caste minorities. The assembly was to formalize the constitution into a liberal structure, owing to a liberal democracy. There was, however an undeniable trend of attenuation with respect to group rights of minorities in the course of its making. In the course of deliberations of the Constituent Assembly, the political safeguards of ‘Backward Classes’, such as their representation in legislatures and executives saw a shift from multiculturism and openness at the beginning to a limited support and the end. The key trigger for this ideological shift was the abolition of reservation for religious minorities, which festered into provisions for rights of other minority groups. The rejection of demands of a separate electorate for Backward Classes and weighted and guaranteed representation in the executive were a few direct consequences. With respect to guarding cultural and educational rights, the Constitution enlisted fundamental rights on Protection and Interests of Minorities and the Right of Minorities to Establish and Administer Educational Institutions. In due time these provisions were, however diluted in such a manner that it created ambiguity and reduced enforceability through the language of the articles. As Bajpai propounds, “Legal institutions constitute themselves as part of liberal democracy through the language of such rights. These institutions neutrally adjudicate and arbitrate between individual rights and political institutions.” They are conferred with the role of protecting Backward Classes against any discriminatory practice and providing justice on such grounds. For instance, the fundamental rights enshrined in the Constitution provide protection to peoples against practices of untouchability and prohibit discrimination on basis of caste. However, reality lies in the fact that legal recourse to violation of such rights is firstly, negatively enforced and hence very limiting in their scope and secondly, limited to wrongdoings or failures of the State or entities under/acting on behalf of the State.

Violence is a substantial tool in the reproduction of the power of caste. Crimes of caste help reinforce the stratified inequalities that the caste system orders. A large portion of the crimes of caste are those against women. The NCRB Report suggests that most such crimes against Dalits are those against women—Assault on Women with Intent to Outrage her Modesty, Kidnapping and Abduction, and Rape constituting a significant portion of such reported crimes.It follows that crimes against women of a lower caste are means to not only take away the agency of the victim, but also their entire community. Kannabiran says that, “Gender within caste society is thus defined and structured in such a manner that the ‘manhood’ of the caste is defined both by the degree of control men exercise over women and the degree of passivity of the women of the caste.” Violence is thus aimed at taking away that manhood.

Most crimes however go unreported and even less convict the perpetrator. There are instances, now fewer than before, where victims voluntarily deny the crime and abstain from filing an FIR. Caste here, functions as a social norm, conditioned and internalized into the minds of such individuals. Others lack faith in the system and accept their powerless position. Those who break do through this conditioning, when attempt to report crimes are mostly unsuccessful. The crime data here, falls short as it is inadequate in recording failed attempts to file reports by the victims of such crimes, where the police actively obstructs the process of administering justice by denying the filing of FIRs, harassing and assaulting them. The Prevention of Atrocities Act lists twenty-two offences under crimes of caste, all cognizable . But its power remains limited when cases are rarely even filed. Taking the example of the infamous Khairlanji Massacre of 2006 where four members of a family belonging to the Scheduled Caste were murdered, the women of the family, paraded naked in public and then murdered on having filed after numerous attempts and obstacles, a police report over a land dispute. After the crime, the entire village, acted as though the crime never occurred. The local police shielded the perpetrators during its investigation. A government report on the killings, prepared by the social justice department has identified top police officers, doctors and even a member of the Legislative Assembly, who actively participated in a coverup and in the delay and hindering of investigations. In doing so, the State, in fact, institutionalises impunity, granted to those of the upper castes and makes their crimes invisible in the eyes of law. This violence is empowered through institutions such as police, administration and the magistrate who hold substantial economic and political authority. Legal systems seem unfazed by acts of caste-violence—from aggressive crimes of rape and murder to the less evident but violent practices of untouchability, abolished yet prevalent in the country. The judiciary as an institution is also often seen denying and disavowing the rights of marginalized castes. An example of this would be the lower court’s verdict on the case that led to the infamous Vishakha Guidelines which involved the gangrape of Bhanwari Devi, a low caste social worker by upper-caste men. Here the lower court, despite evidence, acquitted all five perpetrators of criminal charges. It follows, that most crimes of caste go acquitted.

These instances illustrate the antagonizing nature of the institutions that govern us. The representatives of such institutions act in solidarity of their castes, and further formalize the caste system. The law here fails to translate, not only in the society, but also the institutions that are meant to regulate it.

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