Caste and Gender: A Systemic
Obliteration of Justice
The legal system, rather than effectively and actively working to hold those who commit caste-based crimes acocuntable for their actions, has instead become a space for further discrimination.
Words by Santvana Kumar
October 24, 2020
In late September 2020, a nineteen-year-old Dalit girl was found fighting for her life in a field two hundred meters away from her home, in the small upper caste-dominated city of Hathras, Uttar Pradesh (UP). In what was a brutal incident of caste atrocity, four Rajput men raped and severely wounded the young girl. She succumbed to her injuries soon after. A nationwide anti-caste movement – challenging upper caste privilege, and calling for the inclusion of Dalit voices in the mainstream – has quickly, and necessarily, grown and evolved ever since her passing.
Intentionally cruel incidents such as the Hathras rape case are an everyday, lived reality for Dalit women across India, who are subject to incalculable episodes of atrocities by upper caste folks. A large number of such crimes go unnoticed and unreported. Sexual violence, sexual abuse and rape have been normalised, and occur with impunity due to the undeterred dominance of feudal and patriarchal power. The incident in Hathras is a direct result of this socially-sanctioned casteist and patriarchal hierarchy.
What makes the Hathras case especially significant, is how the UP state government, without a shred of accountability, has attempted to erase evidence of the sexual violence committed against the victim, through purposeful acts carried out by local police and administration.
There is a horror story to be found behind every crime committed against a Dalit woman. Despite the seemingly exhaustive existence of a protective legal framework – with constitutional guarantees of equality and basic human rights; anti-discrimination laws; affirmative action policies; and serious punishments for committing atrocities against Dalits – Dalit women’s experiences with the law in this post-constitutional Indian nation state narrate an altogether different tale. It is one of invisibility.
This essay attempts to expose the eradication of existing caste and gender safeguards within the Indian legal system. The legal system, rather than effectively and actively working to hold those who commit caste-based crimes acocuntable for their actions, has instead become a space for further discrimination. This is due to an intrinsic casteist psychology that is rampant in the Indian bureaucracy and judiciary. A socially-sanctioned upper caste hierarchy aides and abates impunity, normalising violence and especially sexual abuse. It demonstratively upholds the caste dominance otherwise deeply entrenched in contemporary Indian society. Thus, we see a continuous degradation and discrimination against Dalits, and the deepening of casteism both at a structural and individual level, all of which is abetted by the judiciary.
There exists a prejudicial understanding of caste and gender within the Indian judicial and bureaucratic structures. The legal system fails to implement a sociological reading of caste or gender: it takes the categories of caste and gender to be two distinctly vulnerable categories, and fails to understand that this vulnerability is borne out of a complex interaction of both caste and gender. The intersection of caste and gender makes every incident of violence against a Dalit woman unique.
In addition to this, there has been a systemic erasure of Dr B R Ambedkar’s writings in legal frameworks, discourse and Indian jurisprudence. Ambedkar’s writings are in fact essential to unpacking the way caste and gender interact. Reading Ambedkar’s writings as significant to Indian legal philosophy indeed has the capacity to transform how caste and gender are dealt with by the judiciary.
The Indian Judiciary’s Inherent Casteism
The judiciary is, foremost, an implementer of the ‘neutral principles of law’. These principles are those which are considered integral to all legal procedures, and theoretically must be upheld without the influence of personal interests or beliefs. These neutral principles are: justice, fairness and equality. The courts must apply these principles in every case.
But the legal realism school of thought – which began in the late-eighteenth century in the United States, and became the dominant view among legal philosophers in the twentieth century – posits that a sitting judge, on any given case, also applies social interests to their judgement. Legal realism asserts that a judge is an individual like any other, with ideological convictions and personal choices, which reflect in the judicial decision making process. Judges are not innately free from bias when they are dealing with a particular case, and it is likely that such a bias may impact the outcome of a judgment. Thus, legal realism proposes a more comprehensive understanding of judicial responsibility: that the role of a judge is not just to apply the law in a linear and mechanical fashion, or to simply overcome or negate personal bias, but to apply the law in a way that is inclusive, and informed by, social realities – especially, systemic inequality and oppression.
Critical legal studies of the 1970s heavily borrowed from legal realism. It actively rebelled against accepted legal theories and abstractions, and asserted the importance of legal theory being able to integrate itself to social contexts, and make them central to legal thought. Proponents of critical legal theory argue that attributes of the law – such as logic and structure – grow out of the power dynamics inherent within a society. According to the thinkers of this movement, the law ultimately serves the interests of the wealthy and powerful by protecting them against the demands of those that are less privileged than them.
As such, the law loses its ability for effective social change. Abrams Chayes, a critical legal theorist, writes, ‘Like a carpenter with a limited set of tools or a singer with a small repertoire of songs, the lawyer or judge uses and reuses arguments about rights and fairness, social utility and efficiency, ease or difficulty in administering a given rule or standard [….] These stock arguments can be disentangled and reassembled in other combinations, in other cases.’
If the primary duties of a judiciary are seen as applying and dispensing laws to suit the best interests of all parties present, then, it becomes crucial that judges are informed of, and cognisant to, the social dynamics, inequalities and nuances surrounding every case. Judges must take into account that a particular case is the result of the ways a society functions, and it is imperative that a judge applies reason for a case not only through law, but also through merging the real dynamics of a society. The law does not exist in a vacuum, yet we continue to consider it as such. Indeed, it is entirely the result of, and vulnerable to, the power structures and ideological convictions of any given society. Thus, sociological, historical and political literature become key tools by which judgments can be better informed of lived realities of those present in a case.
This theoretical sentiment helps us to unravel caste and gender bias within the Indian judiciary. Caste is so intricately woven into our everyday lives, and the dominance of upper caste hegemony has prevailed in the judiciary for centuries, it is nearly impossible to look at the law without an understanding of caste. Yet, Indian legal thought has not been reflective of, nor does it acknowledge, caste bias through any introspective analysis. This is a crippling, and erstwhile intentional, blindspot.
The technical language of the law has succeeded in keeping legal academia ignorant of its own inherent bias. For instance, the language of the law is deeply embedded in patriarchal and colonial ideals of a woman’s body being “chaste” and “moral”, which is language which exists within the written legal codes. The Section 354 of the Indian Penal Code states: ‘Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.’ It is important to mention that this notion of ‘modesty’ is anchored in Victorian morality codes. The Penal Code was drafted and implemented by the British in 1860 and the same language continues to perpetuate Victorian ideals of morality in the Indian Penal Code 160 years later.
It is trickier to unpack evidence of the law’s casteist bias, considering it is so inherently normalised and omnipresent. Here, judgments become a useful resource to better understand how the law is being implemented, and their language and handling often reveals the inner biases of the judiciary.
Hanamath and Ors. V. State of Karnataka (2006)
The facts of the case and the language of the law detail: a fifteen-year-old Dalit girl from Navalagi village in Karnataka was on her way to collect fodder for her cattle when she was gang raped by four upper caste boys in their twenties from the same village. The court upheld the conviction of rape because all of the evidence – eyewitness testimony and forensic – conclusively pointed against the accused. But, when it came to holding the culprits guilty under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (1989), the court first demonstrated its blindness to caste, and then took a “boys will be boys” line of reasoning. The judgment states, ‘In the present case, on facts, we have found that the act of the accused is the result of their lust and not on the ground that the victim belonged to a Scheduled Caste. They are liable to be punished only for the offence punishable under Section 376(2)(g) of the Indian Penal Code.’ The judgment emphasised issues of modesty and morality. The court congratulated itself on what it believed to be a ‘gender sensitised’ judgement. A further excerpt from the judgement reads:
‘A girl or a woman in the tradition bound non-permissive society or India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.’
The judgement lays emphasis on issues of sexual violence and abuse, and asserts that the victim’s testimony must have a certain amount of truth to it. That the judgement chose to contend over whether or not the victim was speaking the truth, rather than how she was the victim of a systemically-sanctioned caste atrocity shows how grievously the crime has been misunderstood, and entirely reframed by the language of the sentencing law.
This is just one of many examples of how frequently, and easily, judges ignore to formally recognise the issue of caste and enter it into record of the case. The question in response to this erasure then becomes much more difficult, and important to answer – how does one prove to the court that a rape was committed because the perpetrators wanted to exercise their upper caste power over the victim?
Ramdas and Others V. State of Maharashtra (2005)
The incident occurred as follows: The prosecutrix was visiting her family in the village Kewad. She was a resident of village Erkuka after marriage and had returned back home to help her family to harvest the pulse crop that year. The men belonging to a landowning upper caste wanted her to satisfy their sexual desires upon their whim. The judgment describes the incident with the following details: ‘On the date of the occurrence, after working in the fields, she had returned to her home and taken her dinner. At about 10.00 p.m. appellant Ramdas came to her house and asked her as to what she was doing. She replied that she had just taken her dinner whereupon appellant Ramdas asked her to come out with him. When she refused to do so, he dragged her outside the house and whistled twice. The remaining two appellants came on signal being given by him and they all dragged her to a distance of about 500 feet from her house. When she was being dragged out of her house, she raised alarm but no one came to her rescue. She was thereafter raped by all the three appellants who threatened her not to report the matter to anyone otherwise she will be killed.’
Again, the court was not inclined to accept the argument of upper caste perpetrators asserting their power through sexual violence. Instead, it goes as far as to state that, ‘the mere fact that the victim happened to be a girl belonging to a scheduled (lower) caste does not attract the provisions of the SC/ST (Prevention of Atrocities) Act.’
Reasons such as the one above are routinely proposed by the courts. The fact that Dalit and Tribal women are consistent targets of rape and sexual violence – out of the sheer assertion of upper caste power – is not analysed or read as a form of discrimination. In a large number of cases, the court fails to implement provisions of the Atrocities Act, and recognise such forms of violence and rape accruing from caste-driven patriarchal power dynamics normalised and deeply embedded at the very core nature of the caste system.
Judges and lawyers approach cases of atrocity without a clear consideration of how caste, class and gender interact to result in extreme forms of violence and discrimination. Courts repeatedly fail to accept the argument that upper caste perpetrators assert their power through sexual violence and rape. This systemic negligence allows for upper castes to perpetrate all forms of horrific atrocities against lower castes with impunity.
The Erasure of Ambedkar in Indian Legal Philosophy
Ambedkar, as a researcher, thinker, and writer is now claimed by social scientists as belonging to the realm of political thought. He developed his ideas about humanity, society, and their interrelationship, by centering the concerns of social morality within political philosophy. His writings become an interdisciplinary method to understand caste and Indian society. However, Ambedkar is first and foremost known for drafting the Indian Constitution. He acquired his law degree and was trained as a Barrister-at-law at Gray’s Inn of Court in London Law, among other degrees. Beyond writings on caste, Ambedkar also wrote on federalism, human rights and minorities as categories. It is essentially to note that these works, and his interdisciplinary education and approach, have directly impacted the formulation of the Constitution of India.
Ambedkar's works and intellectual contributions are being systemically excluded in contemporary Indian philosophical and political discourses. As stated by Upendra Baxi, a legal scholar, ‘The Indian social science landscape has disarticulated Babasaheb Ambedkar by studious theoretical silence.’ This exclusion must be understood in terms of the politics inherent in our systems of law as well as academia.
Anand Teltumde and Suraj Yengde’s book The Radical in Ambedkar: Critical Reflections (2018) introduces us to the difficulty in situating Ambedkar in a specific intellectual mould. His writings were influenced by, and are appreciative of, western liberal values. Yet he reinvented them to suit the changes that were taking place in the Indian nationalist environment, which, according to him, was deeply divided along the lines of caste, class and ethnicity. Several thinkers from western legal and political thought had a deep impact on Ambedkar’s ideas: he was influenced by the classical historian George Grote, and his ideas on constitutional morality. He was also drawn to the works of the American philosopher John Dewey, who was also his teacher at Columbia University. Dewey’s understanding of change and flux as being fundamental to life, and his insistence that nothing in life must be upheld as sacrosanct, had a profound effect on Ambedkar. He acknowledges their influence in Annihilation of Caste (1936), where he advises caste Hindus to discard their heritage and traditions, as they dehumanise a large section of the country’s population.
Ambedkar argues that an uncritical dependence on the past makes the future vacant and bleak – a mere replication of our history’s worst offences. To not be critical of the past effectively creates a hindrance to a more radical future. Ambedkar takes Dewey’s critique of the dependence on the past, and furthers it with an alternative of creating a space for ‘Social Endosmosis’: the natural flow and exchange of ideas, values, practices, knowledge and energies between and across groups. Ambedkar asserted that this process of social endosmosis could not occur in the rigidly stratified and segregated Hindu social order. Social endosmosis, for Ambedkar, became a heuristic tool in his work. This idea of social endosmosis has the capacity to foster and change the political and social mindsets of caste prejudice – and become a pertinent tool in legal thought to understand how multiple forms of oppression work in parallel.
As mentioned previously, the judiciary has been repeatedly ignorant to the intersection of caste and gender; it splits the two into distinct categories. Social endosmosis also proposes that individuals are not defined in categories or impermeable walls. This is an important thought in terms of situating the category of the Dalit woman: Dalit women do not belong to one single, isolated entity of either caste or gender. It is the interaction of both that we must pay specific attention to. The reading of this identity has been especially ignorant within the law, primarily in terms of the way judges review issues of caste and gender.
Evidently, Ambedkar’s argument that an ‘uncritical dependence on the past makes the future look empty and becomes merely an imitation of the past without realising its drawbacks’ has been systemically erased in the framing of the law and prosecution procedures by the State. The cases discussed previously also illustrate how judges failed to apply the provisions of the Atrocities Act in cases of rape and sexual violence. This idea of social endosmosis is helpful precisely in arguing that in cases of rape or sexual violence against a Dalit woman, the caste of the victim does play a role, irrespective of whether the perpetrator had knowledge or intention of caste while committing the act. It becomes the duty of the judge to ascertain the space, location, land equations and caste politics under which the incident has taken place. These spatial and political categories become important in ascertaining the social structures of power and hierarchy that enable the perpetrator and result in the further vulnerability of the victim.
In Indian jurisprudential thought, the understanding of caste and gender through an anthropological and social lens is missing. The prevention of caste atrocity can only be done by a systematic study of all the conditions under which a crime has taken place. It is only if such specific identification is recognised as pertinent to legal philosophy, that the way judges approach cases of atrocity and caste-discrimination may be transformed. Ambedkar uses social endosmosis as a way of creating conditions for the removal of untouchability. Today, this can be used as a key to further understand discrimination and how it is embedded in society, in legal institutions and in state mechanisms.
For Dalits in India, the law as the provider of “justice” or as bearer and implementer of “rights”, does not come merely from the awareness of ‘Constitutional Guarantees’. Rather, it comes from an emotional connection – knowing that the Constitutional rights instilled to them were and continue to be their biggest hope for eliminating centuries of dehumanisation, degradation and discrimination. This hope has only been possible from the relentless political and social struggles led by Ambedkar. The earnest wish and hope of Dalits is that Ambedkar is situated unbiasedly in jurisprudence, and in dispensing justice.
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SANTVANA KUMAR is a Senior Research Fellow at the Centre for Women’s Studies, Jawaharlal Nehru University, and a Human Rights Lawyer.