The Law Is
Lawyers Disha Wadekar and Nikita Sonavane give deep and searing insight into their personal and intellectual understanding of the inherent casteist bias of the Indian legal system, based on their many years of work and engagement as lawyers and researchers.
Words by Nikita Sonavane and Disha Wadekar
Novermber 6, 2020
This is the first part of an translated and edited transcript of a conversation first had on ‘Lights, Camera, Azadi’ a podcast hosted and produced by Vandit Jain. The podcast, which aired on 19 September 2020, may be found here.
DISHA WADEKAR: If I had to introduce myself I would say that I come from a dissenting community, who are called ‘Vimukta jati’: criminal tribe and denotified tribe. I would like to give a little history to this community. I call this community a dissenting community because it is a community that resisted the British Raj, and their colonial policies relating to tribal waters, jungle and land. These communities and tribes actively resisted the British Raj’s invasion into their forests and resources. And – they were awarded the criminal tag for their resistance. They were deemed “criminal” by the law, more specifically by the Criminal Tribes Act (1871). This Act was made to suppress the tribes and their resistance.More than a 200 tribes were notified as criminal at birth by this Act. These communities were placed in what can only be described as open jails. It was basically slavery: a kind of slavery where they were made to do menial jobs, where they were made to serve their colonial masters, and where they were forcibly taken from one open jail to another. This has been the history of Adivasis. India gained independence in 1947 but this criminal tag was only removed in 1952, when these communities were denotified. Our, and my own, independence day is not 15 August 1947, but 31 August 1952- when my people were denotified.
The criminal tag was removed on paper, and it is important to say – only on paper. Speaking of this is important because we celebrate freedom fighters: essentially upper caste people who raised their voice against the British Raj, but to those tribes that gave intense resistance to the British Raj and their exploitative practices – we give them a criminal tag. This is the history and inherent bias of this country. This is the community I come from. Mahatma Jyotiba Phule and Savitrimai Phule have been a great influence on me. I’m from a Satyashodhaki family. I’m from Pune, which is known for Peshwai. But Pune has another history which is that of the Satyashodhaki Samaj, which was started by Mahatma and Savitribai Phule to oppose Brahmanwad. This is the anti-caste history of Pune which has been suppressed a great deal. And this is the family and upbringing I come from.
My educational training was in engineering. I completed my engineering degree but had realised in the first or second year itself that I was not meant for it. On completing my degree I was placed in a well known MNC. I spent a day of orientation there and decided on that very day that I do not want to do this, and that this was another kind of slavery that I have no interest in. I think on the second or third day after this, I took admission at a law college in Pune, and did a three year course in law. After, I began working in the district courts in Pune. I noticed a very clear agenda at play. I don’t think the community I come from affords the kind of luxury to practice "general law". There are so many problems in the community that no one else will or can raise. I felt a strong responsibility to the community that prevented me from practicing in corporate law firms, or practicing general law.
I began my practice in anti-discrimination legislation or law, in the (Prevention of) Atrocities Act (1989), Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act (2013), and the Forest Rights Act (2006). I ran a legal resource center, which was part of a London School of Economics project, where I was the Maharashtra Litigation head. We were trying to provide a legal support structure to Atrocities cases, to Forest Rights cases, to cases where marginalised communities were denied access to quality legal representation and legal aid. Legal representation plays a very important role in making justice accessible and the idea of equal justice.
Denial of justice begins at the stage of lodging an FIR . The police do not lodge FIRs in atrocity and manual scavenging cases. When they do file FIRs, they lodge them in such a manner that it becomes very easy for the upper caste accused to go scot free. It was my job to give legal representation in such cases. If an FIR was not lodged at all, then I had to follow it up. Additionally, cases of custodial death and torture involving denotified communities is very common. Similar to what we have seen with the Black Lives Matter movement, the police bury these cases. I was doing the work of bringing such cases before specialised constitutional and legal bodies – like the National Commision for Scheduled Castes, National Commision for Scheduled Tribes, National Commision for Safai Karamcharis, Police Complaints Authority, National Human Rights Commision – through the resource center.
After this, I worked with a senior advocate at the Supreme Court, Indira Jaising. The background to this was the case Subhash Kashinath Mahajan vs. State of Maharashtra, where the Supreme Court ruled that the Atrocities Act was being rampantly misused. It became very hard to practice in the lower courts after this judgement in 2018 because the Atrocities Act was completely diluted. It was already hard to take Atrocities Act cases forward for Scheduled Caste, and Scheduled Tribe communities because the legal and criminal justice system has been designed that way.
It became almost impossible to take any recourse after that judgement because of the dilution of Act through mandating preliminary enquiry and doing away with the anticipatory bail provisions in atrocities cases. At that point it began to feel like it was not possible to work in Pune any longer, and that we would have to go up to the Supreme Court to challenge this judgement. Subhash Mahajan was being reviewed before the Supreme Court and we were representing Bhaskar Kashinath Gaikwad, the original complainant in this case. We tried to bring the many facets of atrocities cases before the court. We succeeded and the initial judgement was seen bad in law by the Supreme Court. The original atrocities provisions were restored.
I found this battle to be very important. I have since worked on many cases with Ms. Jaising. Recently we gave representation to students in Delhi High Court and Supreme Court in the Jamia violence and Delhi riots cases. We also represented students from Aligarh Muslim University. During the CAA/NRC protests we filed petitions in the Supreme Court on behalf of people in Assam. Most recently, we have been working on the Sabarimala review petition, which involves a nine judges constitutional bench. We are waiting for the hearings to resume. So yes, this has been my journey so far, and I wish to continue to do such work ahead.
NIKITA SONAVANE: I am from a Dalit community. I was born in Mumbai, and lived in Mumbai for twenty-four years. I came to an understanding of caste and my Dalit identity late in my life because I spent my earlier years trying to adapt or assimilate. You will notice that in systems like educational institutions, which are predominantly upper caste, those that can speak English try to assimilate in order to survive. I have always been interested in pursuing the humanities, so I got admission into a big Mumbai liberal arts college where I studied Political Science. In such an institution where academically, as well as culturally, we spoke of a lot of progressive things, I realised that there was still no space for me to talk about my caste identity, let alone assert it. I realised there that caste was not even mentioned in a lot of liberal and left spaces. I also realised that for me to be able to make sense of my identity, and for me to be able to make sense of the world at large – and for us to be able to assert ourselves as people who belong to these communities – I decided that I need to study the law. Just before beginning at law school, I worked as a student researcher on death penalty research being carried out a the National Law Univeristy, Delhi. I worked on the research they were carrying out in Maharashtra.
On talking to death row convicts and their families in the course of research, I realised that the law that liberal discourse views as being either “neutral” or “objective” is actually very skewed. This myth is absolutely, and especially, destroyed when you talk about the criminal justice system. While working on this project I realised that this system works to further suppress those people who are already suppressed by caste organisation. I did many internships in my three years of law school, predominantly with human rights lawyers and organisations. I realised that even though we speak of human rights, we do not speak of, or even further analyse, the caste system. It is afterall the ultimate structure and foundation of our society. In the second year of law school, I conducted research in Chattisgarh in Bilaspur District Court to understand why the conviction rate is so low in sexual violence cases under the Prevention of Atrocities Act.
Right now, in the age of social media, “brahmanwad”, which we understand to be the brahmanical system, has become a very popular word. But when we talk of the judiciary or the justice system, we have done very little intellectual work in how the law is moulded by, and is a product of, the brahmanical system. Taking this forward, after college, I did my masters in Law and Development from Azim Premji University, where I learnt how law relates to other disciplines. For my thesis I worked on the discourse around consent, which became much talked about after the #MeToo movement, through the lens of brahmanical patriarchy, which we never do. When we talk about consent we only operate through the singular lens of patriarchy. When we look at the judicial interpretation of consent, brahmanical patriarchy emerges from it.
After spending twenty-five years in academia as a student, I entered the workforce and worked on the Forest Rights Act in Gujarat in a region called Dang, where 95% of the population belongs to the Adivasi community. It was important for me to further my perspectives on historical discrimination through the eyes of Adivasis. They are a community that does not identify with caste organisation. They have a separate history with their resources – their jal jungle zameen – on which they are now seen as encroachers. The modern Indian state systematically deprives these communities of what is rightfully theirs. The Forest Rights Act recognised this historical discrimination and attempted to rectify it. But we have seen the ways in which this law has been diluted and witnessed how different groups have played a role in diluting this law at the Supreme Court. I have also learnt from working in NGO spaces – I worked at an NGO in Bhopal for almost two and a half years – that it is very important to have spaces and movements where the leadership of the communities we are working with is present, and where their voices are at the forefront of the movement.
I think the NGO-isation of human rights work has resulted in people from privileged communities assuming leadership positions, and becoming the voices of communities who they have claimed to supposedly be furthering. I began working with the Paridhi community, which is a denotified community in Bhopal, and it became increasingly clear to me that the police and judiciary were targeting this community even though they are no longer a criminal tribe on paper. The post-independence criminal justice system still keeps their criminality alive. I litigated this in trial courts. It has been my understanding that the presence of lawyers from marginalised communities is crucial to lawyering spaces. That we are able to make the necessary arguments is very important, particularly from the lens of anti-discrimination and structural discrimination.
I think we are the only ones who will be able to make these connections because for us this is something that is an integral part of our lives. I began to work on this and for the first year I worked with an NGO in the field, and since the beginning of this year I have begun an initiative called The Criminal Justice and Police Accountability Project with a colleague here. In addition to representing the concerned communities in trial courts and high courts in Madhya Pradesh, we also undertake research to understand how various laws and amendments have been implemented to target these communities. For those of us from marginalised communities and working in these fields, our lived experience makes this clear to us, but not at the level of research and data. We also want to bring this research to courts by presenting it through our lawyering so that we can clearly show the system the ways in which laws have been drawn up and implemented to target certain people. My practice and the work that I do has been informed, of course, by my lived experiences but also by the shared experiences of various people from various marginalised experiences that I have met over the last five years.
DW: It feels important to quickly discuss the history of the “Brahmanwad”. A lot of times people use the term Brahminism or Brahmanwad but detach it from Hinduism and the caste system. I think the very foundation of our understanding of this concept is wrong. Hinduism, as a term, has been used by the Rashtriya Swayamsevak Sangh (RSS) or the Hindu Mahasabha since the beginning of 1900s. But even before that, the law which governed the organisation of the people from the India sub continent was – caste. Caste system has always been the law of this land. When Babasaheb describes the Hindu social order, he asks, ‘What is the Hindu social order?.’ It is the caste social order. It is the caste system. We notice the presence of caste in the course of our day-to-day activity, in each practice and daily social ritual. Many savarna intellectuals and legal academics have tried to understand the issue of today’s conversation as “caste and the law” but I would like to say at the very start that caste IS the law. The caste system itself is law. In the Rise and Fall of Hindu Women (1955), Babasahed speaks at length about the Manusmriti. Caste organisation was already the unwritten law before Manusmriti, which was simply the first written record of it.
Nikita, as you point out, the root of Brahmanical patriarchy can also be found alongside caste organisation in the Manusmriti. Babasaheb says women are the gatekeepers of the caste system: because a woman is the gatekeeper, it is important to control her freedom and sexuality. Babasaheb gets into the details of it, says caste governs kinship relations through endogamy. The burden of caste organisation therefore falls on the upper caste woman who safekeeps the said honour. I would definitely urge you to read Rise and Fall of Hindu Woman to get a better understanding of Brahmanical patriarchy. Babasaheb states that the Manusmriti has always been the code of ethics and the law of this land. Justice and law are two separate things. We have to understand that the law can provide justice, but it can also be used to perpetuate injustice. Historically, law has always been a tool of injustice. Caste organisation is a byproduct of this. Manusmriti puts several sanctions and injuctions on women and shudras. It devalues them by comparing women to the dirt under one’s feet, and shudras to animals. It states that animals, shudras and women deserve injunctions- "Dhor, Chamar, Nari tadan ke adhikari". This is the inception of the Brahmanical idea of justice. Killing a brahmin - 'Brahmahatya', as we all know, was seen as a sin of the highest order. This was because God was seen to reside in a brahmin. The same penological system considered a shudra's killing to carry only sixteenth of the weight of the punishment as compared to a brahmin's killing. There was no value to a shudra life. The Brahmanical law and legal system has been used to reproduce and entrench unequal structures and hierarchies. One of the first principles of law is equal justice and equality before law. But historically, law has been different for the brahmin and the shudra. Like Nikita said in her introduction, marginalised communities have never expected justice from the law because it was never made for their protection, infact it was designed to target them.
NS: Absolutely. You don't have to look too far or read academic literature. Empirically, if you spend five or ten minutes in a police station or a trial court, you will notice that the majority of those being targeted by this system will be those from so called “backward classes”. If we talk about the death penalty, the Death Penalty India Report (2016) report clearly says that about 75% of all those on death row are those from marginalised communities. It becomes very clear that if these colonial laws are still relevant in 2020, it is because the justice system has kept them alive in everyday policing to target these communities. What we see now is a direct reflection of the caste system being reproduced through the criminal justice system on a daily basis. The violence that we see is thus sanctioned by the legal system itself. I completely agree with you Disha – although we have a formal legal system, which is an adaptation of the colonial legal system, the ethos of it is steeped in caste.
DW: Yes, the history of Brahmanical/Indo Aryan colonisation predates the British colonisation in India. Caste has always been the law of this land. When the British colonised us, they very efficiently reinforced caste and its influences. Caste is very flexible. It moulds itself to everything. So caste moulded itself to the colonial legal system so well that we can't differentiate between the two now. When the colonisers left, the legal system had to be governed by someone – and the upper caste have a history of governing law and society – so they assumed the position vacated by the colonisers. So those that captured power positions after independence were upper caste and kept to Brahmanwad. These systems have so deceptively melted themselves into each other to create a legal system in which adopted modern colonial structures have reinforced the existing regressive caste structure and helped legitimise the same.
The real world behaviour of the justice system is related to the Manusmriti. Colonial ethnocentrism – like racialised criminalisation of certain groups within Europe – can also be seen to be reflected in our system. The Criminal Tribes Act is a byproduct of the casteist idea that certain groups are criminals by occupation, as is the targeting of denotified tribes. 75% of people on death row are from marginalised communities. Why is this? This disproportionate representation of marginal identities in prisons is something to think about. OBC , SC, ST and denotified tribes are not judged to be worthy of a dignified life. Do we not see a similarity with the Manusmriti? And why do we claim that this is a modern legal system then? What kind of modern legal system behaves like this and embodies this thought?
NS: In light of our current situation where we are relying on the legal regime to control the pandemic, and an important part of the legal regime is the Epidemic Diseases Act, which is a colonial law formulated in response to the bubonic plague epidemic of 1896 in the Bombay Presidency. The Epidemic Diseases Act – which we are implementing now in 2020 – is a great example of how cannily the British entrenched themselves in the caste system and adapted the law to it. The Act is a tool of medical surveillance which awards the government immense discretionary power. During the plague the government was directed to identify third-class citizens by their appearance, symptoms, clothing, living conditions in order to control their movements, quarantine and disinfect them in order to control the plague. What we see is this entire narrative of who are these people who were considered dirty, who were considered savage, who were considered to be responsible, and whose bodies needed to be controlled? These people were obviously those at the lower end of the caste system.
We see a colonial law come into place, and the British use the pre-existing caste system and entrench it into their colonial law. Now this same law is being used in 2020, to respond to a pandemic. We have seen a lot of instances of police brutality in the past four months and the justification given is that criminal law is being used to control a public health crisis. They say it is a law and order problem where it is necessary to keep certain people under control. Who are these people? We have seen in Guna (Madhya Pradesh) that a Dalit couple was driven to the point of consuming pesticide after forest officials forcefully encroached upon their lands. We have seen multiple instances of police brutality against daily wage labourers trying to make ends meet. It becomes quite clear that the system of surveillance and control is a repository of the caste system, which the colonisers entrenched, and which we have inherited and completely solidified in the post-independent India that we are living in now.
DW: I think this criminal justice system and its inherent nature can be understood well here: the process of identifying criminals has always been deeply racial. Its history is brahmanical history as well. Brahminism, too, has tried to racialise and criminalise certain communities. We have seen how the colonisers brought in the Criminal Tribes Act. Even post-independence, as we see during the pandemic, certain communities have begun to be identified – dalits, nomadic and de notified communities, those who live in shanties and on roadsides. The police have been targetting the same people during the lockdown.
Even with the criminal profiling of Muslims it is important to remember where this system of profiling, racialising and terming them unclean, comes from. The idea that some people are polluted, diseased, criminal, and worthy of rejection is innately weaved in our social fabric. Our criminal justice system emerges from this thinking: we must first racialise them, identify them , profile them and then target them. Like Jayaraj and Benix custodial torture case – who were these individuals? They are not the people who actually brought COVID-19 to the country. This is a pandemic so it has come from the so-called elite classes of India, but communities that already live on the margins are the ones that are being targeted.
This is how the criminal justice system has always operated, and it is a reflection of its society. If society believes in casteism and practises such racialisation and social distancing – and actually, I am against the term social distancing because this is a society whose history has been of untouchability and social distancing – we must call it physical distancing. Social distancing is the wrong term and what will happen is communities that are already suffering on the margins will be targeted further. We say that society is reflected in the justice system and vice versa.
NS: Indeed, the racialised system that you speak about Disha has recently become prominent due to the Black Lives Matter movement. Isabel Wilkerson’s Caste (2020) takes on the relationship between the caste system and the race system. She makes a very interesting point that caste is ultimately a grammar for race. We are looking at a system of graded inequality as Babasaheb has said, and this is the system of graded inequality that we have applied to different sets of human beings. That is the system that we are seeing being upheld in various ways. Ultimately, we have put a premium on certain lives as being not as important as others. This premium and this entire process that we are looking at is a process that is ultimately product, the underlying grammar of which is caste.
DW: I also don’t agree with claims that the British legal system was very egalitarian. I think the legal system the British brought with them had its own flaws. The tendencies of racialisation and criminalisation of marginalised communities is also an ethnocentric colonial construct. The nomadic Romas and gypsy communities have been historically criminalized in Europe. So the colonial legal system shouldn’t be a standard for us to look at. In India and other countries, we see that indigenous communities have a life affirming legal system. We have always thought of them as “backward” and “primitive” but there are a lot of things to learn from how their systems operate. Their legal system does not criminalize and dehumanise.
I would like to stress on what the legal system of Advisas or nomadic communities are. It was not a written system, it was flexible, it would change according to geographical location and weather, and it centred human beings. These have been life affirming legal systems. The soul of the colonial system was the need to govern humans but humans were never at the center of it. If you look at Adivasi communities – such as the Oraon community, the Santhal community – you will see that their harshest punishment was that of social banishment. There is no death penalty or any physically brutal punishment. And yet, we call the system that keeps humans at the heart “primitive”. Our slave mentality is still with us because we think that the colonial masters have given us an egalitarian legal system. The truth is that this tendency to criminalise and give extremely harsh punishments is something that comes from the British. Nikita, you speak about the death penalty and we can see there are many countries that have abolished the death penalty. Even the European countries from where this tradition came have abolished it. But we are continuing it because we think it is an effective boon.
Secondly, I want to say that we do have to accept the normative legal system – I’m a lawyer and I don’t have the “burn it down” or “vacate the justice system” mindset. But while we are doing this we also have to decolonise this system and patiently work on it, because it is not as if we don’t have a revolutionary document to guide us. When our constitution was written in 1950, it aimed to transform the caste based structure of our society. So on paper we have a vision for a legal system enshrined not in caste patriarchy but rather in equality, freedom, justice and fraternity. But in practice, this does not exist. There are many problems in practice, but I don’t think that it is impossible for us to walk on this visionary path and realise the transformative ideals of our Constitution. The way that you are working Nikita, there are many others as well. There are lawyers and legal academics who are trying their best to transform this system to one that delivers justice in its truest sense. This is the democratisation process that we will have to be patient with.
DISHA WADEKAR is an Engineer and has graduated in Law from University of Pune in 2015. She has worked as an Associate at the Chambers of Sr. Adv. Indira Jaising where she worked on constitutional matters including the Sabarimala case, Jarnail Singh case and the constitutional challenge to Citizenship Amendment Act. Disha coordinated a legal resource center set up under a project by London School of Economics. Her work involved representation in cases of custodial death and torture, atrocities against SC/STs, deaths due to manual scavenging. Disha was also the youngest lawyer representing victims before the Bhima Koregaon Judicial Inquiry Commission, set up to look into the caste violence witnessed in Maharashtra in 2018.
NIKITA SONAVANE graduated with a B.A. (Political Science) degree from St. Xavier’s College, Mumbai and an LL.B. degree from Government Law College, Mumbai. She holds an LL.M in Law and Development degree from Azim Premji University (APU), Bangalore. She has worked as a legal researcher and an advocate for three years. She is the co-founder of the Criminal Justice and Police Accountability Project (CPAProject) a Bhopal based litigation and research intervention focused on building accountability against criminalisation of marginalised communities by the Police and the criminal justice system and press for decarceration. She has
previously worked as a Research Associate with the Centre for Social Justice (CSJ), Ahmedabad, on issues of local governance, forest rights, and gender in the Adivasi region of Dang in Gujarat.