Dalit studies and law

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A Bulletinof DalltResourceCentre VAK Mumbai

> December 2 9 prilaoio

EditorialA <

In our post globalised capitalist world, the hierarchical s t ructure o f th e Indian village

cont inues to kill i ts women in the name of honour . T h e regress ive feudal

consciousness of states such as Haryana, Punjab and Ut tar Pradesh continues toconsolidate caste panchayats (khap panchayats) to maintain a status quo despite the

chang ing educational and political awareness am o n g Dalits, women and other

backward sections of our society. Khap panchayats are the age old upholders of

caste norms. Whi le these panchayats had some role in set t l ing community disputes,

these exclusively male bodies dominated by the village elite have been asseting the

values of past gone by eras and stand in th e way of th e values of the Indian

Constitution, and those of liberty, equality and fraternity.

T h e recent developments in the aftermath of brutal ltillings of Manoj and Babli are

very disturbing and also reflective of the social situation prevailing in large parts of

the region in the country. Manoj and Babli, belonging to the same gotra, got married

and fearing threat to their lives, sought legal protection. Whi le returning from

cour t with police escort, they were caught hold of and taken in a jeep and mercilessly

murdered while the police and others looked on. Popidar notions of honour killings

as being confined to Punjab, Haryana and U P is quickly dispelled when southern

states of Andhra Pradesh and Tamil Nadu too witnessed similar incidents he

case of Megala and Sivakumar- who could not mar ry as they were told they were

related. :d bt

L

.

Ho nour killings ar e commonly defined as extr a legal course of action for get ting ni

of condemned females, daughters, wives, sisters, mothers and niece etc usually bythe male family mem bers. W ha t was found in ancien t Babylon has continued to stay

in practice in a lo t of Islamic societies and highly patriarch al and feudal societies like

that of northern India. Now the definition has extended to any community that

conducts such heinous crimes for people marrying by choice and transcending

boundaries laid by social customs. T h e choice of the g irl o r boy of their life pa rtne r

has to conform io the norm s of the comm unity an d/ or family and thus uphold the

honour of the family. W ha t used to be a m echanism by which land o r associated

disputes were settled in the villages has been extended to m arriages and especially

those where inter -caste (between a Dalit and a non D alit in particular) partne rs are

in question. T h e preservers of the Hindu faith have further stretched out their

tentacles to th e Dalit and othe r backward class comm unities in this regard. In a lot

of the cases one would find that it s more th e instance of a Dalit and non D alit or

an OBC o r a non OBC person in question.

T h e process of caste and gender transformation runs parallel . Th e freedomstruggle

and the social reforms initiating education for Dalits and women brought about a

transform ation. H owever, none of these reforms were accompanied by land reforms,

thus further stren gthen ing the entry of the priest or the designate authority (no t

FOR PRIVATE ClRCULATlON ONLY 3



Dalit Bulletin 4

ancient cities. In order to suppress crime the Arthashastra advises the imposition of stringent c~ii-few

from about two and a half hours after sunset to the same before dawn. The Arthashatra also talks

about the corrupt ion of the judges in those days and views i t in a very serious manner.

These are some examples of texts that were later referred to by English ~vr it er s s 'Hindu laws'

The Manusmrithi is known, as we all know, for its role in the rigidification of the caste system.

'Crime' 'punishment' and 'morality' were meant only for women and shudras. Th e Manusmithri

labelled shudras as criminals with capital punishments. Obedience, honesty to the masters of those

of other varnas was laid very strictly on the shudras. I quote par ts from the Manusmriti to support

this point:

A once-born man (a sudra), who insults a twice born man with gross invective, shall have his

tongue cut; for his low origin.'

If he arrogantly teaches Brahamin their duty, the king shall cause hot oil to be poured in to

his mouth and into his ears.

A low caste man who tries to place himself on the same seat with a man of high caste shall

be branded on his hip and be banished, or (the king) shall cause his buttoclr to be gashed.

Judicial power was to be kept out of the reach of shudras under the AMan~ismritind vested alrnost

entirely in the Brahmins. According to the Manusnlriti social, economic and political status, judicial

executive and administrative power and opportunity of education was given only to the Brahmins

and other three varnas.

Many of the ideals upheld by the texts discussed above remained directly ilnchallenged till the

reform movements such as Bhakti and Sufi questioned Brahminical hegemony. Many such mo\.ements

gained ground in as early as the letI1century. In Karnataka, the movement led by B a s a~ m n a lays

an important role in this regard. As part of his socio-religious reforms, Basaveshwara advocated

foilr principles - bhakti (devotion), kayaka (labour), dasoha (offering) and samata (equality). Instead

of Vedas, vachanas were practiced. He was against the caste system and formed the Lingayat religion,

which is now also noted as a caste in our country.

While these ~~ oi ce sf dissent are significant beyond measure, we need to look more critically at the

reasons for why they could not then be incorporated in a more articulate manner in fiiture legal

processes and dicta. 'The spirit of this dissent might be one that has continued and will continue

the incorporation of more specific ideas however, has been limited. Focused qi~el ling f these ideas

by dominant ideologies is one reason, but a process of looliing more closely at these ideas and

inward might also be a worthwhile prqject.

Here some important research questions emerge. Significant among them is this: If we are to argue

that the concept of 'religious texts' emerges during the British period, how then, do the above

mentioned text begin to get referred to as 'Hindu religious texts '. Another aspect of this question, of

course is the term 'Hindu' itself This as a category has also been argued t o trace back to the British

period. This categorization methodologically, is often taken for granted and needs to be questioned.

i l~ id , > . j

Ur i t r~c l i a l~ le? ,n M;lnu'h I~ ~c l i a , l l ap te r Vl l I n R u l e an d p u n i s l u n e n ts c r ~ d r , '5 Sli arn shu l I sla m 1>.,1. )

I l > i d , c r ~ d r 7

ibicl, code x .p. 5



December 2 9 -April 2 1

Mughal period

Through a cursory glance at the legal st ructures dur ing the Mugllal period, one can say that there

were some significant changes, while the basic caste structure remained intact in many parts. While

conversion to Islam was a significant change, it did not necessarily mean the shunning of the caste

system. Appointment of local jurists to hear cases gains groilnd and is consolidated dllring thisperiod. Badai~nihas recorded that according to Akbar's orders the cases of Hindus were to be

decided by the Hindu judges and not by the qazis. While in writings of Jesuits in mughal times,

.Jesuit Father Moilserrate says that Brachmane (Brahmans) governed liberally thr.ough a senate

and a coilncil of the common people . New legal texts that came in with the M~ ~ g h a l slso begin

to have an influence on pre-existing codes. To what extent this conversation between different

codes happened is up for disci~ssion.But this exchange occi~rrings one that we can safely claim.

One cannot then deny the changes in some areas of Mughal stronghold in the ways in which caste

hierarchies played out. It might have remained intact but upper caste gentry had to adapt to new

ways of keeping their influence intact in this new and also, over time, relatively more centralized

governance of the M~lghals.

British period

The British period saw codification which is significant to any study of law in this region today. As

mentioned earlier, this codification process was based on the 'Hindu laws' . Th is in itself has a

significant impact. It is not within the scope of this paper to analytically look at the exact nature

of this impact. Th is particular section will look at specific areas of colonial law that had an impact

on the lives of Dalit communities during the colonial period and after.

Court proceedings Shift from panchayat to centralized courts

Yet another important legal development during the British period that has had an important

impact on Dalit cominilnities is the shift frorn the panchayat system to the centralized court

system. The practise of the panchayat nyaya system has been a well known one in India. This

system had a significant irnpact on access to justice systems for rnarginalized communities such

as Dalits. Th is system thus remains India's massive attempt to providejudicial access to hundreds

of millions of villagers . It is important to note that the panchayati system begins to take ground

during the Mughal era.

The Panchayats had many aspects that are beneficial to the Dalit communities.

One, that many disputes within the communities were settled within the cornmilnities. If

at all it involved more than one community then, it coiild be talcen for a hearing to the

village elders and land owners. This is not to say that caste biases did not play a part here.

But the local nature of this system did give some space for local specific judicial practices

and a more personalized approach. The 'panchas' were often known to most in the area and

the pancha in turn knew many in the area. This approach is almost entirely lost with the

creation of courts. The judges do not know the plaintiff or defendant personally neither do

they know their circumstances or their regional specificities.

G e r o g e C R a n l ( i n I : ~ c l ~ g r o ~ ~ r i do Incli;~r~:I\V( Ca~ i >l~r idge ,<)<.f;)P. iPancliayat Justice an Indian Es pe ri a~ en t n legal Access with Upenrlra ba.\-i in Marc Galanter, Law in arrd soci ety i~ r

Morrlerr India p, 51



Dalit Bulletin 6

Second , the p rox im i ty o f the panchayat s wi th the crea t ion of cen t ra l i zed cour t s , the

people had to t ravel lon g dis tances to access judicial process . T h is the n me ant loss of wages

earn ed. He re we can see the beginn ings of the inconvenience of judicial proceedings in

l ives of poor people, who do no t have a large income to sp are.

T h i r d - the judic ia l p rocess i tse lf . T h e mo dern em phas is on do c~ im en tar y v idence was no t

requ ired ear l ie r . Th i s spared m any comm uni ti es the s t ra in o f acqui r ing these papers . T h e

word of thos e involved in the case was taken as proof. Furt he r , the burde n of proof did not

fall as heavily as i t does now on the accused. I t was largely based op e xte rna l evidence.

Lastly, cases were heard instantly and there was no bacldog. In sho rt, we can ar gue th at the panchayati

system benefits D alit com munities - not necessarily in term s of gaining justice but in te rm s of

access to j ~idicial ys ems.

T h e idea of this survey is not to ideal ise the panchayat syste m over t he central ized cou rt system . I t

is r a th e r , t o q u es ti o n t h e a s s i ~m ed u p remacy of t h e l a tt e r o v er t h e fo rmer . T h e fo rma l e q ~ ~ a l i t y

allegedly put in place throiigh the ce ntralized c ou rt systems has i ts benefits . T h is discussion, however,is to indicate that this shift is a significant change and needs to be looked into more closely to

unders tan d mo re vividly the changes in the engagem ent of Dal i t com mu nit ies wi th the law.

4 n ~ ~ m b e rf s ign i fi can t q i ~e s t io ns me rge . F i rs t , i t migh t be wor t ll \vh i le to look a t the exact

p ro cess b y w h i ch p o w er w i t h i n t h e p an ch ay a t s y s t e m p as s ed i n t o t h e h an d s o f u p p e r ca s t e

conlmuni t ies . W as this a m ere logical progress ion based on caste-based power combined w ith land

ownership, or was the process m ore complicated? Ti l l when can w e t rac e bacli d issent against th is

upper cas te dominance of the panchayat system? Second, how can we t race the t rajectory of the

mo dern cour t sys tem becom ing one tha t f i~nct ions n the p remise of non-ex is tence of the cas te

sys tem, ra ther than acknowledgem ent o f i t a long wi th necessary ar i .angements to a ss i re jus ti ceaccord ing ly? W h a t a r e the m ethods by which we can use so m e of the too l s o f the pancl- iayat

sys tem with in the m odern co i~ i - t ys te m wh ere the re is an increase in local izat ion of judges , lawyers

etc? Is i t possible to cre ate cri ter ion beyond formal legal de gre es to inc lude th ose w ith specific local

experience in the legal systems?

Concept of reservation in post Independence in Karnataka

T h e lack of part icipat ion by Da l i t judges in the courts could also be related o r depe ndan t on the

Brah min not io n of M eri t , eff iciency , ski l l , v is-A-vis how th e sa m e is ar t icu lated now, post

r e s e r v a t i o n . I n 1919 K a i - n at a k a , a s i g n i f ic a n t d e b a t e e n s u e d b e t w e e n J u s t ic e M i l le r a n dVishveswaraya. Th is deb ate remains rel e~ ran t ven today. Vishveswaraya, being a B rahman di \.an

argued th at m eri t and skil ls resul t in gain ing marks in formal educa t ion and thu s reservation if

implemented, wi ll dete r eff iciency in w ork. Just ice Mil ler qu oted i t by say ing that - ~ r ~ e r i ts 7~o tlzi7~ g

but courage honest, k il ~ d , ebf ul, love and c omm itment in tlzeir work. '

As we can see Justice Miller s a rt icula tion how ever vague , is st i l l of value. A fixed defi nit ion of

me ri t and ski ll which is based ent i rely o n the formal educat ion syste m d eters anyon e fi-om gaining

wha t they could have th rou gh the ski lls that they al ready possess . Th is defini t ion then p riorit izes

certa in kind of skil ls possessed already by som e com mu nities tradit ionally, lead ing us to the debate

of hierarchy of mind over ma t ter . Physical labour is always considered second ary to m ental labour.

t . Lfe .ru lt lr i 7 nu f t h1 ~l l u ~ ~ r t v d ~ i l h uS k i v u I r t r ~ n u r( k u n t ~ a i l u e 1: ri o 11)



December 2 9 -Apri l 2 1 7

Su ch deb ates m ay be familiar to 11s rig ht now, but w hen it too k place in 191 9, it was new. Is it

poss ib le to t r ace the h is to ry of the no t ion of mer i t and sk i l l and the h ie ra rchy be tween them?

Fur the r , wha t a re the tools by which we can s ignificant ly redef ine these not ions to inc lude others

in processes of educat ion, employment e tc? How then, can we implement these new def ini t ions

within t he public sphe re thr ou gh law and policy?

ost ndependence

Hindu Marriage ct and marriage c~lstomsof Dalits

Th ere is an in te res t ing s to ry to be to ld about the f raming of Hindu fami ly laws and the ro le o f

Dali t comm unit ies within that . A whole se t of laws are col lec tively ca l led Hind u Laws . Th ese

include t he H indu M a r r i a g e A c t , 1955 , H indu M ino r i t y a nd G ua r d i a nsh ip A c t , 1956, H ind u

Disposit ion of Pro per ty Act 1916, Iginda Adoption an d Main tenance Act 1956, e tc . Und er these

laws the def ini t ion of 'Hindu' inc ludes a virashaiva , a l ingayat or the fol lowers of the Branlha

Prathana or Arya S amaj and fur th er in (b) any person w ho is Buddhist o r Ja in by re ligion and thus

it excludes M ~is l i rn s nd C hris t ians, who have their own sep ara te personal laws.

Let 's take the exam ple of the Hind u M arr iag e Act . W e can safely argu e that i t is based ent irely 11

Bhi-aminical notions of Hindii ism and thus o nly covers and espou ses custom s re la ted to th e same.

Sec t ion of the law tha t speaks of the ce remonies of Hin du m ar r iag e a re cus tom s tha t a re

specific only to u pper ca ste m arr iag e ceremonies

1. A Hind u marr iag e may solemnized in accordance with the cust om ary r i tes and ceremonies

of e i ther par ty there to,

2

W he re such r i tes and ceremonies inc lude the saptapadi ( th a t is the tak ing of seven s teps bythe br ide g roo m a nd th e br ide joint ly before the sacred f i re) to make the m arr iage comp lete

and binding when the seventh s tep is taken.

T h e problem w i th th i s exc lus ion does no t end wi th a compla in t o f marg ina l iza tion bu t ex tends to

loosing out on customs that have a potent ia l to be socia l ly enhancing. One such example is the

Dali t pract ice of the g ro om paying the br ide ra ther than vice versa as in the case of upper castes .

Since this pract ice of Dali ts has n ot been addressed legal ly , dow ry has become a no rmative practice

and Dali ts have begun pract ic ing the same.

Yet anoth er examp le is the patr i l ineal approach of the Hindu ma intenance a c t . I t does not take into

considera tion the matr i l ineal pract ices in some Dali t communit ies . Su ch a considera t ion mig ht n ot

just address the needs of a specific commiinity but enhance the effect of the law as a whole.

In the qu est of den yin g the caste sy stem through out the law, specif ic , provisions reg ardin g inter

dining for instance are not mentioned in the context of inter-caste marr iage s, assuming, perhaps

that this aspect is taken care of by preventing untouchability as a whole by law. This of course as

we know is a my th . At tec t ion to de ta il s such as th is might go a lon g way in f igh t ing d isc r imina t ion

in ways that broader const i t il t ional equal i ty might not .

Th is his tory can be t raced back to Dr . Ambedkar 's proposed Hin du C ode Bill in 1930. T h e bi ll vests

r igh t to p roper ty in women am on g va r ious o the r p rogress ive a spec ts . I t was sho t down a t tha t

I Hind h t ~ r r i a ~ ect 1 ):7,5



Dalit Bulletin 8

t ime and never became law i n. th at same form. T h e whole set of Hindit laws enacted po st 1950 are

seen as a conservative version of this bil l. T h e legal debate be ginn ing in 1990 to the debates tha t

we nt into the formitlation of the Hindit laws, can be an im port ant area of st i tdy in th e process of

establishing a Brahmin normative in family law leading to marginalizat ion and estal) l ishment of

conser~rative ractices of marriage and kinship by overruling other possible cliverse and \ribrant

practices.

D a l i t s p e ci fi c l a w s ( p r a c t i c e a n d t h e w r i t t e n l a w )

E m p l o y m e n t o f M a n u a l S c av e n g i ng a n d C o n s t r u c t i o n o f L a t r i n e s ( P r o h i b it i o n ) A c t ,

993:

Definit ions of term s are m ade in a narro w sense in this act . Section Z j ) of the A ct defines manual

scavenger and manual. M anual scavenger means a person engaged in or employed for manually

carr ying huma n excre ta and the express ion manual scavenging shall be constri tecl accordingly.

Th is on ly addresses the car ry ing of the human excre ta . I t leaves ou t labo ~u -hat Dali t people are

involved in on a daily basis that involves carryin g waste that is toxic and h az ard o~ ts o their h ealth .

Fu rth er, this act does no t provide for relief measures o r altern ative s for w ork ers irivol\red in ~n an tta l

s c a r e n g i n g . T h e r e a r e i n s t a n c e s w h e n c l e a n i n g w o r k e r s d i e w a r l i i n g i n d r a i n s , e t c . R u t n o

compensation is p rovided for them . Th is d isp lays a lack of po li tica l co ~nr n i tn l en t o e l iminate s ~ c h

acts even within the n arro w scope of this Act. This has necessi tated the f i l ing of PILs before the

Srlpreme C ourt in 42 3 seeking the enforcement of the Act . Th is w r i t is s t i l l pending in cour t .

The Scheduled Castes and the Scheduled Tribes Prevention of Atrocities)

Act,989:

Th is Act is often hailed as a powerful one to address atrocit ies against th e SC /S T co~n mitnity . his

is partially true. F or instances, offences un der S ection 3 and ar e non-bailable. N o anticipatory bail

is gi\.en since it facilitates imm ediate arrest s. Also, once the F IR has been filed, no fi~ rt he r om proi~ lises

can be made. How ever, th e Ac t fai ls on ma ny grounds too imple men tation being an im porta nt

one. IJack of political will on th e pa rt of judges and officers has led to m an y acquittals too.

A case in exa mp le is th e K ampalapalli case in K arnataka. Often referred to as th e 'Jal ianwala Bagh'

of Karnataka, 5 Dalits w ere locked in their hu ts and bu rnt al ive. T h e co urt proceedings in Kolai-

cou rt concluded w ith an acquit tal on gro itnds of lack of evidence regardin g f ire being set to thehilts . T h e accused however, have not been given any bail by th e Karna taka II igh Co urt and the case

is pending . Th e inc ident saw lo ts o f media coverage , Dal i t and o th er hum an r igh ts organisa t ions

wen t on str ike dem and ing th e accused to be punished. Polit icians such as Sonia Gand hi visi ted the

place and me t with t he victim's family. ? 'he co urt did not m ake any efyorts to und ersta nd w hy th e

witnesses would tu rn hosti le . T h e coilr t never tr ied to understan d the socio econoinic reasons why

the witness o r th e victim's family would not against th e accused. De spite al l j i tdgem ents, th e vict im's

family woitld have to ea rn th eir livelihood and co ntinue to dep end on t h e upper caste families. 'The

victim's father Venkataramappa says, they have killed my tw o sons, my wife and my only daugh ter

alon g with th ree o the rs all because, we hav e been refusing t o do m enial jobs in ou r village th at kvehad been carrying on for decades. My eldest son Venliataramana was murdered two years ago. .

O ur family left the village imm ediately after fearing, da ng er to ou r lives th e tahsildai- circle

inspector bi-ottght all of us back to the village two months back stating that there will not be any



December 2 9 -Apri l 2 1 9

danger to our l ives . . W e will never g o back to Kampalapal li on any condit ion how we can

believe on any body's a ss ~~ ra nc e '

T h e D al it c om m iln it y h as lo s t t r ~ ~ s tn the legal system because of instances siicli as these. An

abysnla l number ofD ali t judges in the co1u.t further add to t he s i tua t ion. A su n re y fiom LO2 states

tha t ou t o f tlie 26 j~ ldge s n t he S ~ l p r e m e o ~ l r t , n ly o n e w as D a li t. T h e h ig h c o ~ ~ r t sad 25 Dalits

out of 625 posit ions.' An othe r repor t named Kar imunda in 1998; s ta tes tha t out of t lie 70 postsreser \.ed for SC candidates , only 15 have been f il led. S i ~n ilar ly ut of the 35 posts for S T candidate

only have been filled. An in de pt h study on the composition of th e co urts , laws involving D a1' ts as

'well as the st atu tes are essen tial.

Concept of Morality Crime and Punishment

Notions of cr ime, pi lnishment and the associa ted moral i ty are of ten deemed to be 'neutra l ' in

modern law. I t is possible to significantly critique such an argument f i-om a Dalit perspective for

instance. T h e m anusm rit i ' s spir i t of obedience expected f rom D ali t people continues in on e form or

ano ther. Values of bein g obedient t o the mastel; honest wi th tlie master, wo rk hard for tl ie inaster

ancl so on ar e stil l engra ine d. W it h formal legal codes, the re is also the prac tice of supposedly

clealirig with all cases ilniformly. Given the existing social stigma, upon which is the uniformity

claim in cases, specific socio-economic background of any given case is often outside the scope of'

the tr ial. Cases of crinie committed at the insistence of the master by the Dalit servant as it were

are not inquired into wit11 this back grou nd at the tr ial. Prevailing practices of trea tin g marg inalized

c on in iuni ti es a s mor e s ~~ sc e p t ib l eo cornmit crime is one that remains ilnqilestioned within the

courti .oom . It is possible to d o in d ept h stiidies of case law t o critically analyse such practices. I t is

throu gh these analyses tha t the s t igm a that remains ingra ined within c our t processes can be exposed

T h i s ma y the n l e a d w a y to p r oduc t ive c ha nge s w i th in t he c ou r t s t r uc tu r e s pu t t i ng i n p l a c e

mechanisms that could at least begin to address these broad issues.

Conclusion

T h e above account hopes t o su gg est \various aspects which can be looked i nto in tlie broade r area of

legal enquiries into D alit studies. T h es e areas, as we can see often em er ge from specific laws and the

debates aroun d the same. T h e effect of this analysis will exten d to social- econom ic and political

spheres. Stan dard fram es of discussion in the co ntex t of Da lit st~ ld ie s uch as tlie reser\ration debate

can be problematised th ro u gh the se analyses. A historical approach and a focus on law can pro\,e to

be usefill.

W hi le th e law in its essen ce can be argued to be the 'formal' disco urse as it were, stories it can tell us,can make a formidable his to ry of caste based hierarchy as well as dissent . T h e r i ~ p t i ~ r e sn the

al legedly f i rm and 'equal ' s t ruc tur e of the law can te ll us reams about discr iminat ion and dissent

against the same. The law is an interest ing s i te as it is one that provides space fornially while

reiteratin g pre-existing poLver st ruc ture s. I t is this con trast that makes in a \l ibrant f ield for academic

inquiry in many fields, inclu ding that of Dalit studies.

12 Interview of Mr.Venkataramayya father of Venkataramappa 11 2000 H id d en face o f Apther ied Hari p ag e IPresidents no on Cha ttisg arh Judges Indian E xpress, February 3,2002

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