Abstract
This article considers the connection between legal education and imparting of justice vis-à-vis caste crimes in India. It argues that failure of law to offer justice to survivors of caste crimes is linked with the failure of legal education to offer an understanding of caste and gender to its students. From a survey of three law schools in Delhi NCR, this article raises questions about the knowledge of caste that law students possess. It examines this data in the light of what must be known and taught to the future lawyers to prepare them as unbiased and effective officers of law. The article begins with an anthology of caste crimes in the past few decades, setting off a detailed discussion on why understanding caste is imperative to justice machinery in India and hence to legal education.
Introduction
At the onset of building a sovereign republic in 1951, India gave itself a Constitution that guarantees equality to all its citizens. It was the euphoria of time, of overthrowing the British empire and getting the reigns of the nation into their own hands that compelled the Indian ruling elite to fulfil the promise of a free, just India through law. Moreover, Dr Ambedkar, the maker of India’s Constitution, was also the leader of the untouchables, the lowest in the caste hierarchy, and was fervently committed to employing law as the tool of justice. In this sense, the Indian Constitution can be seen as a revolutionary document that tries to replace the Brahminical scriptures and the practices of inequality and oppression that they tried to perpetuate. In this sense, the Constitution tried to create a secular democracy out of a feudal caste-ridden India. 2 It removed all legal disabilities to the lower strata of society, minorities, women and added special provisions and safeguards to ensure not just formal but also substantive justice. 3 Thereafter, specific legislations were passed to address particular issues. 4
Yet, the legal machinery is yet to imbibe the Constitutional values. For justice to prevail, it is vital that officers of law operate as unbiased entity rather than members of their social, political groups. It should not matter who they pray to or who they vote for. When they are in their uniform, they must uphold the law. However, this does not happen in practise. According to their personal experiences and location in the social ladder, individuals develop a way of viewing the world. When these individuals become part of the police, army, lawyers, judges, they carry their worldview into the office, police station, court, behind a gun. For instance, police have been guilty of prejudice against Dalits, Muslims and other minorities with devastating outcomes. During Bombay riots in 1992, the Mumbai policemen—it was noted—were reading the Shiv Sena mouthpiece Saamana that published calls to eliminate Muslims and how this was the time to teach them a lesson for all their sins. The officers of law then responded to these impassioned calls and acted like the soldiers of Hindutva within the apparatus of the State and were indicted by the Srikrishna Commission. 5 In Gujarat pogrom in 2002, the police returned the escaping Muslim families to the bloodthirsty mobs, stating ‘we have no orders to save you’. 6
In 2008, Human Rights Watch found that the discrimination and violence against Dalits and Adivasis continued and the authorities’ duty bound to implement law failed to protect them.
Dalits and indigenous peoples (known as Scheduled Tribes or adivasis) continue to face discrimination, exclusion, and acts of communal violence. Laws and policies adopted by the Indian government provide a strong basis for protection, but are not being faithfully implemented by local authorities. 7
Crime statistics corroborate this observation. According to the National Crime Records Bureau (NCRB), 47,064 cases of crimes against Dalits were registered in 2014. This is a significant increase from 39,408 in 2013 and 33,655 in 2012. NCRB statistics show that 2,233 Dalit women were raped in 2014, up from 2,073 in 2013, 1,576 in 2012, 1,557 in 2011, 1,349 in 2010 and 1,346 in 2009. 8 Whether the actual number of crimes against Dalits has increased or not, the number of such instances being reported has certainly increased. This means that there is an increasing need for the Indian legal system to take cognizance of the violence faced by India’s Dalits.
When society continues to be severely caste ridden and oppressive, law is the promised recourse. But when does the law perpetuates the culture of impunity? When do the law enforcement agencies protect the offenders and silence the victims? A detailed report by the National Campaign on Dalit Human Rights and National Federation of Dalit Women shows that out of the 500 Dalit women interviewed across four states in India, only 13 per cent could get their criminal cases registered and only 0.1 per cent got any justice. Dalit women were threatened by upper-caste abusers with expressions of ‘You will go to the police? Police station is extension of our homes’, making evident the nexus of societal and state power. Police actively blocked 17.5 per cent Dalit women who wanted to file cases of gang rape, sexual exploitation, murder, grievous injury and economic blockade. Apart from direct refusal to lodge FIRs, police weakened the prosecution cases by not applying relevant sections, not conducting mandatory investigation, ill-treating the victims and their families and refusing to protect the witnesses. A stark example of the biased role of police is the way the Atrocity Act is applied to legal cases involving a Dalit or tribal against Hindu upper caste; least stringent sections of verbal abuse, using caste names, are applied, whereas offenders are hardly slapped with stringent sections that deal with forcing Dalits and tribal off their land, making them work without wages, imposing sexual relations or prostitution on women and children, etc. Further, the failure to prove these cases does not invite strictures on the police officers but makes mainstream belief stronger that the Atrocity Act is used for fake complaints. 9
The cases that reach the courts face the apathy and prejudices of the judges. An overview of a few landmark cases in the past two decades confirms that the courts have failed to offer even a quantum of solace. Let us take a few examples here: Bhanvari Devi case judgement of the Rajasthan High Court was of the opinion that ‘Indian culture has not fallen to such low depths that an innocent, rustic man will turn into a man of evil conduct that disregards caste and age differences and becomes animal enough to assault a woman’. 10 Bhanvari Devi, a potter woman, was trying to stop child marriages as part of her work as a Sathin, the Rajasthan government’s social reform programme through village workers, when she challenged the upper-caste village elders and was gang-raped. Trying to file an FIR, she faced severe humiliation and hostility of doctors 11 and police, which was part of the chain of attempts to weaken the legal case. 12 This case shows the treatment to a lower caste woman at the doorstep of law, culmination of which was in the court that asked ‘what perversity propels Bhanvari to imagine being raped by Gujjars, when they would not even consider her worthy of such defilement?’ 13
The disbelief of the judges comes from their faith in the system of untouchability and of honour of upper-caste men. They did not believe that a nephew and an elderly uncle can rape together; instead, they believed that Gujjar/upper-caste men would veer away from the touch of a Dalit woman. Hence, the judges assumed that Bhanvari Devi was lying. Exposure to the nuances of caste patriarchy would have made the judges aware that sexual desire and violence are as integral to inter-caste relationships as much as arranged marriage within caste and sub-caste is. Anupama Rao asserts that sexual violence is caste violence because it operates as the prerogative of upper-caste men.
The logic of caste endogamy prohibits all men from viewing all women as potential sexual partners, but also gives upper caste men the right to enjoy Dalit and lower caste women. The knowledge of this is a public secret, normalized as privilege by the upper castes and experienced as a shameful secret by its victims. 14
The legal system throughout history has internalized this knowledge and made the path for justice thorny for victims and their families. For example, the colonial courts assumed that a high-caste woman would consider rape worse than death, especially if her rapist was a lower-caste man. Since the lower-caste woman had no virtue, she needed no stringent protection of the law. As a British official reported in his journal,
Take the case of a high caste female, who would sacrifice her life to her honour, contaminated by the embrace of a man of low caste. On the other hand … a woman without character or any pretensions of purity, who is wont to be of easy access. In the latter, if the woman from any motive refuses to comply to solicitations of a man, and is forced by him, the offender ought to be punished. But surely the injury is infinitely less than in the former.
15
In this schema, women’s sexuality is at the core of masculinity of a caste. Since the ‘manhood’ of the caste is defined by the degree of control that men exercise over women and the degree of passivity of the women of the caste, by the same argument, demonstrating control by humiliating women of another caste is a certain way of reducing the manhood of those castes. 16 As Bhikhu Parikh conceptualizes it, caste system ensures ‘institutional humiliation’—by dominating and degrading the lower castes, by prohibiting the development of their capacities and self-respect, the lower castes are easily perceived and presented as the objects of humiliation. 17 Bhanvari Devi was raped in front of her husband, who was also taught a ‘lesson’ for his failure to control his wife, when she challenged the upper castes in their age-old practices. While she was punished for her transgression, the fact that he was unable to protect her further reduced him as a man. The structure of relations in the caste society thus castrates lower-caste men through the expropriation of their women. The husband accompanied Bhanvari Devi to the police station and hospital and became a co-sufferer in her continued humiliation.
In 2006, the Bombay High Court did not find Khairlanji murders a caste crime, but a property fight that broke out between one Mahar family and the Mali clan—when clearly the mutilation of bodies and parading the family naked through the village show not just cruelty but also a pattern of ‘teaching a lesson’ to the Dalits that has been repeated many times in Maharashtra since the 1960s. For instance, in the infamous Sirasgaon case in 1964, four Dalit women of the same family were paraded naked throughout the village while being beaten up. Even then, the court came to a conclusion that since there was no rape, there was no sexual offence. 18
The Bhotmanges were a Dalit family of Khairlanji which owned a small plot of land and had resisted the attempts of the dominant elements of the village to construct a road through this land. On 29 September 2006, a mob of men (belonging to the mali, i.e., gardener, an OBC caste in the state 19 ) attacked them. Surekha Bhotmange and her daughter Priyanka were raped and killed. Her sons Roshan and Sudhir were also killed after their private parts were mutilated with rocks and sticks. Police were partisan in this gruesome crime: An independent enquiry commission of judges and activists noted that the police ignored the frantic call for help from the family members of the victims even while the killing was in progress, hence allowing the heinous crime to happen. They did not file the FIR promptly nor took any action promptly. Extremely serious neglect was committed, perhaps deliberately, during the post-mortem of the two women’s bodies—including blood samples, nail clippings, rectal swab, vaginal swab and pubic hair samples—leading to destruction of crucial evidence of rape. Police inspectors made premature public statements about the crime and higher administration remained aloof and indifferent to the Khairlanji atrocity, hence indirectly allowing the crime and the subsequent manipulation of evidence to happen. 20 Based on the weak case made out by the police, the court disregarded the history of caste violence in deciding this case and called it revenge arising out of property dispute. 21
The atrocity against Dalits has been repeated in many states of India and has reached similar outcomes in the legal process. The aggression and cruelty of the upper-caste communities, coupled with prejudice and deliberate inaction—including never applying the Atrocity Act—by the administration culminates in the court in miscarriage of justice.
In August 1991, in Tsundur village in Andhra Pradesh, eight Dalits were killed and several others injured in attacks by their fellow upper-caste villagers. The houses of several Dalits were looted and set on fire, forcing many Dalit families to flee from Tsundur as well as neighbouring villages. Twenty-one people were sentenced to life imprisonment by a special court under the Prevention of Atrocities Act in 2007. The court that heard this case was the first-ever special court to be set up under the Atrocities Act. However, this verdict was overturned by the Andhra Pradesh High Court in 2014.
In 1997, members of the Ranvir Sena, believing that the village’s Dalits were Maoist sympathizers behind the killing of 37 upper-caste men in Bara, Gaya district, killed around 58 Dalits in a midnight attack on the village of Laxmanpur Bathe, Bihar. They broke open doors of the villagers’ homes and fired at them while they were asleep. A verdict on the case was only given by the Patna High Court in 2013, 16 years after the pogrom. The court acquitted all the people convicted of various offences in this massacre by a lower court.
In reality, caste is the driving force behind this crime; wherever Dalits have done well educationally, economically or challenged the upper-caste dominance over land and resources or free/lowly paid labour of the Dalits, they have had to face severe violence. 22 Thus, while crimes happen precisely because caste exists, they hardly get punished because the legal process does not recognize these crimes as caste crimes, and make it into a property dispute or murder of revenge or a rape of lust and passion. The reasons for this can be found in many quarters: Firstly, applying law in a positivist way—without its social, political context—can lead to injustice. For example, when a lower-caste woman comes to a court and the judge decides her criminal complaint by merely applying the statutory law without taking into account the history and practices of caste and gendered violence within which she lives her life. Courts that take suo motu action on so many issues fail to do so in these cases of gruesome violence and allow themselves to be guided by procedural constraints. Secondly, caste positionality of public officers is a factor. If we view policemen, doctors and judges as people rooted in their gender, religion, caste and class, it is easier to understand how loyalty and commitment towards one’s own caste and community overrides the sense of justice. 23 For example, if a Maratha policeman gets a case of Maratha boys sexually assaulting a Dalit labourer in their fields, the strong caste networks and loyalties will push him to not lodge a crime against the rapists and treat the gang rape as a youthful mistake, not a crime that should warrantee years of imprisonment. 24 Thirdly, as Pratiksha Baxi points out, for justice to be served, not only judicial horror but also society’s horror must be earned. 25 Assault cases involving young, middle-class professional women as against poor, vagabond young men who fit into the category of ‘threat to society’ elicit horror, whereas criminal cases with women from lower social class against powerful, wealthy and well-connected men elicit no horror. 26
The last premise to consider would be of lack of knowledge and awareness. In the absence of specific efforts, what constitutes as neutral and continues as normal is the dominant perspective. If we assume that public officers behave in the certain way, not owing to prejudice, but due to their lack of awareness, we must explore ways to overcome this lacuna. Legal education is one such place where this lacuna can be addressed. While the socio-political world may be a biased world, law schools—with their emphasis on social justice morality and clinical legal education—can be seen as alternative spaces. Young people come here with dreams of becoming lawyers and take their place in society, contribute to the world, becoming adults and citizens. Yet, lawyers may not be better equipped than a layman and may hold opinions and attitudes akin to their class, caste, gender position rather than as unbiased officials of law. 27
Law schools are the place in which they can be trained in the letter and doctrine of law and prepare for law as a profession. 28 But in reality, law schools, even the elite law schools including the National Law Schools (NLSs) and others that follow their pattern and pedagogy, create ‘practice-ready’ lawyers for the corporate law firms. 29 Even when litigation is being considered as an option, the ideal before the students is of ‘India’s grand advocates’, 30 which encourages the ‘tendency of the legal profession to develop as a craft rather than an instrument of justice’. 31 On this background, the purpose of the present study is to assess the role of Indian law schools in preparing their students in the instruments of justice. Through the surveys of graduating batches of three law schools, we evaluate the extent to which law students are ready and prepared to take up their place as officers of law in a caste-ridden society—whether they are able to think without bias, consider the legal cases within their social context and have a sociological and legal understanding of caste.
Methodology
In this article, I set out to ascertain the knowledge of caste that the law students possess. Empirical data is gathered from interviews with faculty members, survey with students and content analysis of the courses offered.
A survey exploring the quantity and quality of engagement with the concept of caste within legal education was conducted in three institutions in Delhi NCR, namely National Law University (NLU), Delhi; Jindal Global University (JGU), Sonipat; and Jamia Millia Islamia, Old Delhi, representing the different forms of universities present in India—Jamia Millia is a government or public university, NLU is public–private as it is a private college with public funding and JGU is a completely private university registered under the Haryana Private Universities Act.
Only the graduating batch of law students in each of these law schools was targeted. Total number of 115 forms administered in the classroom and students responded to the questions in my presence and returned the survey papers to me. Most of these were conducted during April 2015.
The survey had over 50 questions and students responded to whichever question they liked. This means some questions were left unanswered. Students were requested not to consult with each other before writing the answers but to just write what they feel.
The three institutions differed from each other on varied counts. In Jamia Millia, out of nine professors of law, only one professor has expertise in women and gender and there is no professor with expertise in caste or minority rights. Jamia Millia has a centre named Dr K.R. Narayanan Centre for Dalit and Minorities Studies that provides a PhD in Dalit and Minority Studies.
In NLU, Delhi, there are no compulsory courses dealing with social justice, caste or gender. It has around 40 faculty members. It has a compulsory course titled ‘Law, Poverty, and Development’ and a few elective titled ‘Minority Rights’, ‘Displaced and the Law’ and ‘Law and Social Exclusion’.
Jindal Global Law School (JGLS) has various courses such as ‘Human Rights Law’, ‘Institutions: Political and Economic Ordering’, ‘Cross-national Human Rights and Rural Governance Clinic’, ‘Law and Development’, ‘Policing and Law Enforcement’, ‘Health and Human Rights’ and ‘Human Rights and Difference’ that include the aspect of caste as part of the course content. For example, Annihilation of Caste by B.R. Ambedkar is a compulsory reading in Human Rights Law. At the time of this research, the JGLS had around 70 faculty members.
The student respondents were a diverse group from all over the country, but mostly from Uttar Pradesh, Rajasthan, New Delhi, Karnataka, Haryana and Maharashtra.
The Revelations from the Survey
An analysis of the observations and revelations from the students’ answers offered the following insights.
Caste: A Topic Worthy of Discussion?
The first response towards the survey was of reluctance, even suspicion, in the classrooms when the questionnaires were administered. Students were not sure why this survey was being conducted and whether they should answer at all. Even after the detailed research agenda and the purpose of the survey was explained to them, they seemed reluctant to divulge information about their caste identity. One reason for this could be the that the urban youth in India is uncomfortable about associating themselves with caste; caste is considered to be a bygone social institution, caste privilege a myth and caste politics an uncouth endeavour carried out by manipulative politicians and illiterate masses.
Young law students who perceive themselves to be ‘modern’ caste-neutral Indians may not want to be assessed in terms of their caste positionality or stereotypes that go with belonging to particular caste groups. They may not be as reluctant while filling out government forms that routinely seek identifying information, which seems to have no direct impact or implications for the person giving out the information. However, since this survey was proclaimed to be about teaching caste in law schools, the students may have been unwilling to be the subjects of scrutiny.
In the questionnaires, many respondents refused to write the name of their caste and stated that they are not proud of their caste identity because it is something based on their birth and not personal achievements. This is a positive sign of young India, where people routinely recall their caste status—for example, I am a Brahmin or a Rajput—to reiterate their respectability or entitlement. Thus, these students are ahead of those fellow Indians who expect entitlements on the basis of their caste. Individually, then these students are the secular citizens that Indian democracy needs. However, as prospective officers of law serving the goal of justice, these law students need to be aware of caste as the socio-economic and political structure. Legal education should expose them to the probability that education, opportunities and exposure are all part of a gambit of social capital that comes from caste positionality—an individual’s placement in the caste ladder. They should be nudged to consider that their achievements as individuals in a class, caste and gendered society maybe connected with the caste group they belong to—highlighting the group characteristic of individual achievements.
This brings us to the question whether caste determines class in our society. To this, majority of the respondents answered in positive.
This means that the students were aware of the linkages between caste and class—that position within the caste hierarchy influences the position within the class hierarchy.
Among the 115 students that took the survey, only 9 identified themselves as SC/ST and 3 as Muslim OBC. This brings home the fact that percentage of lawyers from lower castes is very low. Further, only a couple of Dalit students fell under the high-income bracket (household income above 0.2 million per month) which determines the quality of education they can access. For example, being of a high-income category is a prerequisite for studying in Jindal and thus income becomes a barrier for students of lower castes. 32 Even getting admission in a premier college as NLS, Bangalore, needs access to law coaching and good training for exams, which is again linked to social capital. 33
Which Subjects Should Teach Caste?
To the question ‘Have you been taught caste? In what subjects?’ majority responded that they have been taught caste with reference to law and poverty. This is a very narrow understanding of the caste problem in India—just like studying gender only through domestic violence jurisprudence. Majority of the students could not cite even a single legal case-related caste when they were asked to do so. Another common response was that caste was learnt while doing Constitution as a subject. They quoted Articles 14 and 21—right to life and right to equality. It is true that the study of Constitution includes understanding inequalities of caste, religion, gender and disability that plague Indian society. But they are seen through the concepts of equality and discrimination. Other aspects of living in a caste society are missing when caste is learnt only under the Constitutional gambit.
Further, when asked about the legal cases that law students have come across in their five years, majority of the students mentioned Indra Sahany 34 case. In this case, the Supreme Court upheld the implementation of separate reservation for OBCs in Central government jobs. It also excluded ‘Creamy Layer’—that is, higher income bracket—of OBCs from enjoying reservation facilities. For the purposes of the current analysis, it is pertinent to note that this case was centred around positive discrimination and reservation and not on any aspects of caste hierarchy, oppression and exploitation. So, we see that the discussion about caste and education starts with reservation angst—the evaluation of the process with which upper-caste students may lose their seats to lower-caste students—whereas historical role of caste in keeping young people away from education is not discussed and is hardly known to the respondents. 35
Very little of legal cases involving gruesome caste and gender violence was known to the respondents. When asked about cases about caste, rape cases of Dalit women do not appear—as stated above, legal officers miss out the caste angle and treat rape cases as only violence against women. Even when the questionnaire specifically asked about cases like Mathura rape case 36 and Khairlanji, students could not exhibit much knowledge—out of 115, merely 42 students could write a few basic details. Mathura rape case in India is like Brown v. Board of Education in the USA—it changed the rape laws first time in independent India by challenging the concepts of ‘consent’ and relevance of ‘character’ of the victim. Khairlanji massacre (as discussed above) took place in 2006 but has not really entered the law school curricula, moots and debates. In contrast, Aarushi case from 2008 is known to most. No wonder, since there are already two movies and three books on Aarushi case.
Interestingly, many students who gave the details of Mathura or Bhanvari Devi case knew them from Criminal Law, supporting the thesis that caste, and also gender, should be built into mainstream law subjects. Ideally, teaching caste and gender would be a two-way process, creating a sociological understanding of the caste system, its historical role in hierarchy and oppression in India through a solid social sciences education as well as the case law in current times woven into the core courses such as crime, property and family law.
When is Caste Relevant? The Domestic Front and Marriage Alliance
Next important bunch of questions in the survey relate to the relevance of caste to the daily life family practices of respondents. For instance, rituals at birth, dress code, choice of marriage partner, wedding ceremony, worship and prayers are all influenced by caste. What we know as cultural practices, that is, food, weddings and fashion/attire, can in fact be caste practices. Further, religious practices such as rituals and worship are also specific and distinct for different caste groups. As Figure 5 shows, respondents are able to recognize that dress code, employment of women, choice of marriage partner and marriage rituals followed (including dowry paid) are connected to the caste their family belongs to. Hence, questions of gender including freedom and mobility of women are connected to caste.
The choice of marriage partner is the most pertinent question. Fifty-five per cent general category people have said yes to inter-caste marriage. Many others have stated that they are pro inter-caste marriages, but still do not see it as a possibility for themselves owing to the family structure they live in. This must be seen as a positive change in social attitudes, at least of the present young generation, that so many young men and women are amenable to inter-caste marriage. We could witness a spade of inter-caste marriages in the next decade that could change the contours of urban society.
However, the answers possibly exhibit a casual approach to the question of marriage and caste. The participants are unaware of the fact that the whole system of caste depends upon the endogamous marriages—the ‘arranged by family within caste and sub-caste marriages’ are vital to the functioning of the caste/class/kin order. Exchange of women within the boundaries of caste and the resultant production of progeny of pure blood are managed through the marriage relations. The control of sexuality of women is paramount, and the pratiloma marriage—a union between a lower-caste man and an upper-caste woman—leads to societal panic. The inter-caste marriage is not a matter of individual choice but a question pertaining to family honour, which is guarded through emotional blackmail, intimidation, coercion and violence. 37 Annihilation of caste, according to Ambedkar, depends upon inter-caste marriages, especially between untouchables and caste Hindus. According to Anupama Rao, 38 over the past few decades, the Dalit politicization and desire for upward mobility have sometimes been recast as a desire for sexual access to upper-caste women. However, just the hint of such transgressive desire from Dalit men has proven to be catastrophic for entire families and communities. The brutal violence against Dalit men accused of desiring upper-caste women illuminates the double jeopardy of sexual violence as caste violence.
Honour killings have been on the rise in the past decade, and gruesome killings of lower-caste men marrying or trying to elope with upper-caste women have been witnessed in parts of the country such as Tamil Nadu, Kerala and Maharashtra, which historically did not have honour killing. Partisanship of police and other legal machinery has been noted in many of these crimes, for example, in Dilipkumar’s case, the married couple was summoned to the police station where the wife was threatened and abused by her family and was sent back home with them. She was killed thereafter and police made a case of suicide 39 or in Manoj and Babli case in Haryana where the police withdrew protection and landed the couple in a death trap laid out by the girl’s family. The 2011 judgement is the first one to convict the killers. 40
The survey question has varying, equated responses between ‘Yes’, ‘No’ and ‘Maybe’; however, parental consideration being a caveat even here, one particular response said, ‘Personally yes, but family no’, again highlighting the tussle between parental considerations of caste and the willingness to let go of the same. Personally, this seems like an issue rooted more in the generation and its belief system. Like the saying goes, every generation has its own revolution, and breaking free from such constructions of purity and pollution that are so archaic and enmeshed in our culture seems to be the revolution for the ‘millennial’ generation.
Apart from marriage, the restricted entry into the house of people belonging to castes considered as ‘untouchable’ was enquired about. Untouchability is prohibited by the Indian Constitution and subsequent laws. There is a general belief that untouchability is practised in remote areas of the country and is negligible. Yet, studies show that it exists in both rural and urban settings in obvious and subtle ways such as entry into homes and temples, sharing of food, access to water resources and sitting separately or not at all in public meetings. 41 In the present questionnaire, questions were asked in an escalating format—starting from whether Bhangis can enter your home? Then kitchen, and the last one being whether they are served water in the same utensils? From the general category, already 23 per cent respondents knew that Bhangis are denied entry into their homes. Thirty-one per cent said that entry into the kitchen was not allowed and a startling 45 per cent of these upper-caste households do not serve water to Bhangis in the same utensils, that is, if they do serve water at all.
A lot of respondents chose not to choose yes or no, and so their responses are counted in the ‘no reply’ category for this set of questions as well as others. There is no way of finding out whether respondents actually do not know or whether they are ashamed of admitting that their homes and families are treating people badly based on their ascribed identity.
Caste, Class and Labour
The last set of questions pertained to how caste pans out in the market place—whether it is important for employment opportunity and whether as legal professionals caste identity would affect the prospects of student respondents in their career graphs.
While majority of the respondents believed that caste has no connection with a person’s intelligence, they did not see the role that caste plays when it comes to employment. While students must know that the professional ties and networks operate through family, clan and community in India at the practical level, when it comes to academic settings and answering questions on paper, less than 30 per cent respondents have recognized it. 42
Question about relevance of the caste of a lawyer was asked in two ways:
Whether the caste of a lawyer is relevant to the kind of cases the lawyer will take up? To consider, for instance, whether a Maratha lawyer will be able to take up and do justice to a case of a Dalit rape survivor against Maratha men. Whether the caste of a lawyer is relevant to clients when approaching the lawyer? This questions aims to ask whether caste solidarities extend to professional linkages within the legal system.
My own elective class of Caste, Gender and the Law, 2016, conducted surveys of contemporary caste practices as a marked assignment. This exercise showed that people found it comfortable to take their legal cases to the lawyers of their own caste as they felt that they would understand, appreciate their concerns and do their best to win the case in court. 43 The relevance of emotional linkages may fade when clients approach lawyers in the higher court (High Court or Supreme Court), where the aura or the reputation of the lawyer may become the winning factor. Hence, the class factor trumps caste factor. Also, there is no adequate representation of each caste among the High Court/Supreme Court lawyers, and hence they will have to find competency in other castes. Yet, even in the ‘Grand Advocates of India’, as Galanter and Robinson 44 call them, there are very few Dalits and OBCs and no women. They are mostly upper-caste Hindu men with a few exceptions of Parsis and Bohra Muslims.
In terms of authenticity of data, we realized that though the survey does not ask for names, the physical presence of the researcher in front of the respondent makes the respondent answer with ideal answers–they write what ought to be rather than what they truly believe. On the other hand, if the same survey was to be submitted on an online portal, the anonymity of the respondent would have helped bring out the prejudices more evidently.
Conclusion
Teaching caste is essential in law schools as caste is an inevitable part of social, political and economic life in India. Legal problems that arise in India are deeply entrenched with the caste question and thus as lawyers, students need to be sensitive to the aspect of caste while dealing with cases. While ‘teaching race and racism’ in an American law school, Frank Rene Lopez finds that ‘many students lack the background in history and sociology to fully understand some of the topics discussed. People rarely recognize how they have been conditioned to see the world. There is always a number of students who believe that racism no longer exists and that it is a thing of the past. They often base their beliefs on their personal experiences; many students of colour, on the other hand, do believe that racism still exists at some level’. 45
How may we teach law in a manner that encourages the protection of the ‘vulnerable subject’? 46 I suggest here that law schools should include caste, gender, minority and identity into their curricula, as specific subjects as well as part of mainstream law subjects. Knowledge is key in dispelling myths and prejudices. It is imperative that students learn to recognize hierarchy and discrimination, and are sensitized to question their own prejudices that they have subconsciously ignored/accepted. Hence, the questionnaire for this research tries to assess the information and knowledge of the law students about the concept of caste. The sociological understanding of the reality of caste and knowledge of the harsh experiences of individuals and groups based on their social identity may change the attitude of law students, which in turn could alter legal practice.
Footnotes
Acknowledgements
I wish to thank my student research assistants for their invaluable help during this long-drawn research, along with their cheerful company and unfailing faith in me: Deep Prabhu and Krishaal Makreja for the initial literature review, Utsav Lohia and Raghu Vinayak Sinha for playing with data in Excel, Amala Dasarthi and Kopal Raje for ideas, conversations and organization of thoughts and, lastly, Asmita Singh for help in tying the loose ends of these written pages.