Equal by Law, Unequal by Caste: The Untouchable Condition in Critical Race Perspective

Caste-based oppression in India lives today in an environment seemingly hostile to its presence: a nation-state that has long been labeled the “world\u27s largest democracy;” a progressive and protective constitution; a system of laws designed to proscribe and punish acts of discrimination on the basis of caste; broad-based programs of affirmative action that include constitutionally mandated reservations or quotas for Dalits, or so-called “untouchables;” a plethora of caste-conscious measures designed to ensure the economic “upliftment” of Dalits; and an aggressive economic liberalization campaign to fuel India\u27s economic growth. This Article seeks to answer the question of how and why this seemingly foolproof recipe for equality has done little to mitigate centuries of oppression and exclusion for over 167 million Dalits at the bottom of India\u27s caste system. To the contrary, caste-based discrimination, inequality, and oppression comfortably survive and even thrive in modern day India. The Article further asks whether the clarion call of “Dalit Rights are Human Rights,” increasingly heeded by the international community and heard around the world, can now succeed where all else has seemingly failed. It concludes that “Dalit Rights are Human Rights” is not a self-fulfilling prophecy but one that can galvanize a project of social transformation so long as it does not restrict itself to the constraints of the legal and moral regime in which this struggle now lives. Part II of this Article situates “caste” in a global context, particularly in the context of debates around affirmative action, racial inequality, and racial justice in the United States. Part III focuses on Indian policies for redressing caste discrimination against Dalits, known in legal parlance as “scheduled castes,” and includes an overview of constitutional provisions and protective legislation aimed at abolishing “untouchability” practices and promoting Dalits\u27 socio-economic development. Part IV argues that India\u27s law enforcement machinery enforces the rules of the caste system, and not the “rule of law.” Part IV additionally offers insights into how and why these prescriptions have failed to deliver on their promises. Part V articulates the formidable challenge that the caste system presents to human rights law because of the competing and even inimical theory of graded inequality that it represents. It scrutinizes the human rights framework for its over-reliance on the state as a neutral agent of social change and for the attendant assumption that like economic growth, international laws and admonitions directed to the state will “trickle down” to the rest of the population. Part V argues that human rights actors must be scrutinized for paying insufficient attention to the dismantling of the caste-based hierarchical mindset. Like the economic and constitutional regimes that precede it, the human rights project has, to date, left this project wholly undone. Part VI concludes that the human rights movement can galvanize a project of social transformation so long as it does not restrict itself to the constraints of the legal and moral regime in which this struggle now lives