A Bulletin of Dallt Resource Centre, VAK, Mumbai

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December 2009 - April aoio

Editorial
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In our post globalised capitalist world, the hierarchical structure ofthe Indian village continues to 'kill' its women in the name of 'honour'. T h e regressive feudal consciousness of states such as Haryana, Punjab and Uttar Pradesh continues to consolidate caste panchayats (khap panchayats) to maintain a status quo despite the changing educational and political awareness among Dalits, women and other backward sections of our society. Khap panchayats are the age old upholders of caste norms. While these panchayats had some role in settling community disputes, these exclusively male bodies ,dominated by the village elite have been asseting the values of past gone by eras and stand in the way of the values of the Indian Constitution, and those of liberty, equality and fraternity. The 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. While returning from court 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 UP is quickly dispelled when southern states of Andhra Pradesh and Tamil Nadu too witnessed similar incidents - the case of Megala and Sivakumar- who could not marry as they were told they were related. at.

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Honour killings are commonly defined as extra legal course of action for getting nid of condemned females, daughters, wives, sisters, mothers and niece etc usually by the male family members. What was found in ancient Babylon has continued to stay in practice in a lot of Islamic societies and highly patriarchal 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. The choice of the girl or boy of their life partner has to conform io the norms of the community and/ or family and thus uphold the honour of the family. What used to be a mechanism by which land or associated disputes were settled in the villages has been extended to marriages and especially those where inter -caste (between a Dalit and a non Dalit in particular) partners are in question. T h e preservers of the Hindu faith have further stretched out their tentacles to the Dalit and other backward class communities in this regard. In a lot of the cases one would find that it's more the instance of a Dalit and non Dalit or an OBC or a non OBC person in question. The process of caste and gender transformation runs parallel. T h e freedomstruggle and the social reforms initiating education for Dalits and women brought about a transformation. However, none of these reforms were accompanied by land reforms, thus further strengthening the entry of the priest or the designate authority (not
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December 2009 - April 2010

Dalit Studies and Law: Research Areas and Questions Manoranjini2

Tills particular paper hopes to point to specfic areas of study possible withiri the broader frame o f a legal 1 2 1 1 befrom the Karnataka region, a1;horsg-h the perspective of Dalits is India today. Most gf the tnaterial a paper seeks to point to wider alzas from a historical perspective. For the sake of convenience, the paper has been divided into three sections based on the well established chronology of most post colonial countries. and nothing else. As ale will see in the course o f the paper, the time lines .reill This division isfor convenie~lce be bl~aredand issues discz~ssed,will continue beyond these strict time boundaries.
Jfi2 will start with a short overview of the TGdic tradition q~f rules governing society and move on into mcre contemporary articzslations during the colonial period and after independence. Hflzile, it will not be a n ~ctensive survey, it will point to some key areas that can be looked into, in detail to trace histories of Dalit conz~nunitiesand law in India.
Ancient period

This section focuses on the treatment of law within Dalit studies and the limitations in this area. There have been inadeqnate studies to understand the origin and implementation of law in the context of lower caste communities. In our country, we have a strong history of laws reflecting the ideology of ancient literature and this extends into practice of the law also. According to Rasham, Brahmincal codes began with the Vedas and Upanishads, collectively called 'satra'. Before getting into a detailed discussion on the impact of the sutra, let us look at its meaning and types. Sutra literally means 'thread" in a common understanding of the word. This 'thread' then almost always symbolizes control. For example, a 'mangalasutra' which is a symbol of marriage for women , signifies control on women. Following the Vedas and Upanishads were the grhya sutras dealing with domestic religioik ceremonies and finally manuals of human conduct these were called as dharamsutras. Here, it is important to note that the term 'Hindu' was not used in reference to any of these texts as the term itself has its origins in later colonial statistical systems. Dharma sutras are often hailed as the earliest source of Hiiidu 'law'. Due to the prestigious place that the sutras held, the early colonial period saw the conversion of the sutras from prose form to verses where they were also expanded. The earliest recorded dharma sastra is that of Manu, probably composed in its final form in the 2"" and yrd century AD in the Gupta period. Ya<jurvedais yet another dharmasastra that played a very important part in forming the ci\~il law traditions in this region. Other important jurists of the middle ages were Hemadri (c.1300) & Jimutarahana (lgthcentury) whose treaties on inheritance (Dhayabaga) also influenced later Indian law but all these were considered as civil laws. Kautilya's Arthshastra was liberal in many matters while it remained within the frame of caste hierarchies. It says that villages were often over populated; many poor folk from the country and hills drifted to the towns and find life more difficult than their old surroundings. Some of these 'unfortunate' and 'uprooted' people were the habitual criminals who seem to have existed in all

'A. L. Ba~li;im' Tile wonder of' t h a t w a s India

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Dalit Bulletin

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 corruption of the judges in those days and views it in a very serious manner. as 'Hindu laws' These are some examples of texts that were later referred to by English ~vriters 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. The 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 parts 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. '

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Judicial power was to be kept out of the reach of shudras under the AMan~ismriti and 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 plays 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. e s dissent are significant beyond measure, we need to look more critically at the While these ~ ~ o i c of 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 of these ideas the incorporation of more specific ideas however, has been limited. Focused qi~elling 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 to trace back to the British period. This categorization methodologically, is often taken for granted and needs to be questioned.
il~id,I>. 1 1 (j Uritr~clial~le?, in M;lnu'h I ~ ~ c l i aCllapter , VllI Il>id,cr~dr 272 ibicl, code x .p. 5 0
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December 2009 -April 2010

Mughal period

Through a cursory glance at the legal structures during 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 this period. 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 aalso l s 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~rringis 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'. This 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. This 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. T h e 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. This system thus remains India's massive attempt to providejudicial access to hundreds of millions of villagers". I t 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. T h e '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. T h e judges do not know the plaintiff or defendant personally neither do they know their circumstances or their regional specificities.
Geroge C. Ranl(in , I % : ~ c l ~ g r o ~ to ~ rIncli;~r~ id I:I\V( Ca~i>l~ridge, l<)<.f;)P. l(i Pancliayat Justice : an Indian Esperia~entIn legal Access ( with Upenrlra ba.\-i) in Marc Galanter, Law in arrd society i ~ r

Morrlerr India p, 51.

Dalit Bulletin

Second, the proximity of the panchayats - with the creation of centralized courts, the people had to travel long distances to access judicial process. This then meant loss of wages earned. Here we can see the beginnings of the inconvenience of judicial proceedings in lives of poor people, who do not have a large income to spare. Third - the judicial process itself. T h e modern emphasis on doc~imentary evidence was not required earlier. This spared many communities the strain of acquiring these papers. T h e word of those involved in the case was taken as proof. Further, the burden of proof did not fall as heavily as it does now on the accused. It was largely based op external evidence. Lastly, cases were heard instantly and there was no bacldog. In short, we can argue that the panchayati system benefits Dalit communities - not necessarily in terms of gaining justice but in terms of access to j ~idicial sys tems.

T h e idea of this survey is not to idealise the panchayat system over the centralized court system. It is rather, to question the assi~medsupremacy of the latter over the former. T h e formal e q ~ ~ a l i t y allegedly put in place throiigh the centralized court systems has its benefits. This discussion, however, is to indicate that this shift is a significant change and needs to be looked into more closely to understand more vividly the changes in the engagement of Dalit communities with the law. ,4 n ~ ~ m b of e r significant qi~estions emerge. First, it might be wortll\vhile to look at the exact process by which power within the panchayat system passed into the hands of upper caste conlmunities. Was this a mere logical progression based on caste-based power combined with land ownership, or was the process more complicated? Till when can we trace bacli dissent against this upper caste dominance of the panchayat system? Second, how can we trace the trajectory of the modern court system becoming one that fi~nctions on the premise of non-existence of the caste system, rather than acknowledgement of it along with necessary ari.angements to assire justice accordingly? W h a t are the methods by which we can use some of the tools of the pancl-iayat system within the modern coi~i-t system where there is an increase in localization of judges, lawyers etc? Is it possible to create criterion beyond formal legal degrees to include those with specific local experience in the legal systems?
Concept of reservation in post Independence in Karnataka.

T h e lack of participation by Dalit judges in the courts could also be related or dependant on the Brahmin notion of 'Merit', 'efficiency', 'skill', vis-A-vis how the same is articulated now, post reservation. I n 19 19 Kai-nataka, a significant debate ensued between Justice Miller and Vishveswaraya. This debate remains rele~ranteven today. Vishveswaraya, being a Brahman di\.an argued that merit and skills result in gaining marks in formal education and thus reservation if 1s i t7~otlzi7~g implemented, will deter efficiency in work. Justice Miller quoted it by saying that - ' ~ r ~ e r but courage honest, kil~d, hebful, love and commitment in tlzeir work. "' As we can see Justice Miller's articulation however vague, is still of value. A fixed defi nition of merit and skill which is based entirely on the formal education system deters anyone fi-om gaining what they could have through the skills that they already possess. This definition then prioritizes certain kind of skills possessed already by some communities traditionally, leading us to the debate of hierarchy of mind over matter. Physical labour is always considered secondary to mental labour.
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December 2009 -April 2010

Such debates may be familiar to 11s right now, but when it took place in 1919, it was new. Is it possible to trace the history of the notion of merit and skill and the hierarchy between them? Further, what are the tools by which we can significantly redefine these notions to include others in processes of education, employment etc? How then, can we implement these new definitions within the public sphere through law and policy? Post Independence

Hindu Marriage Act and marriage c~lstoms of Dalits

There is an interesting story to be told about the framing of Hindu family laws and the role of Dalit communities within that. A whole set of laws are collectively called "Hindu Laws". These include the Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Disposition of Property Act 1916, Iginda Adoption and Maintenance Act 1956, etc. Under these laws the definition of 'Hindu' includes a virashaiva, a lingayat or the followers of the Branlha Prathana or Arya Samaj and further in (b) any person who is Buddhist or Jain by religion and thus and Christians, who have their own separate personal laws. it excludes M~islirns Let's take the example of the Hindu Marriage Act. We can safely argue that it is based entirely 011 Bhi-aminical notions of Hindiiism and thus only covers and espouses customs related to the same. Section 7 of the law that speaks of the ceremonies of Hindu marriage - are customs that are specific only to upper caste marriage ceremonies 1. A Hindu marriage may solemnized in accordance with the customary rites and ceremonies of either party thereto,
2 . Where such rites and ceremonies include the saptapadi (that is the taking of seven steps by

the bride groom and the bride jointly before the sacred fire) to make the marriage complete and binding when the seventh step is taken." T h e problem with this exclusion does not end with a complaint of marginalization but extends to loosing out on customs that have a potential to be socially enhancing. One such example is the Dalit practice of the groom paying the bride rather than vice versa as in the case of upper castes. Since this practice of Dalits has not been addressed legally, dowry has become a normative practice and Dalits have begun practicing the same. Yet another example is the patrilineal approach of the Hindu maintenance act. It does not take into consideration the matrilineal practices in some Dalit communities. Such a consideration might not just address the needs of a specific commiinity but enhance the effect of the law as a whole. In the quest of denying the caste system throughout the law, specific, provisions regarding inter dining for instance are not mentioned in the context of inter-caste marriages, 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 myth. Attection to details such as this might go a long way in fighting discrimination in ways that broader constitiltional equality might not. This history can be traced back to Dr. Ambedkar's proposed Hindu Code Bill in 1930. T h e bill vests right to property in women among various other progressive aspects. It was shot down at that
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time and never became law in.that same form. The whole set of Hindit laws enacted post 1950 are seen as a conservative version of this bill. T h e legal debate beginning in 1990, to the debates that went into the formitlation of the Hindit laws, can be an important area of stitdy in the process of establishing a Brahmin normative in family law leading to marginalization and estal)lishment of conser~rativepractices of marriage and kinship by overruling other possible cliverse and \ribrant practices. Dalit specific laws (practice and t h e written law)

Employment o f Manual Scavenging and Construction o f Latrines (Prohibition) Act,

1993:

Definitions of terms are made in a narrow sense in this act. Section Z(j) of the Act defines manual scavenger and manual. "Manual scavenger" means a person engaged in or employed for manually carrying human excreta and the expression "manual scavenging" shall be constritecl accordingly. This only addresses the carrying of the human excreta. It leaves out labo~uthat Dalit people are to their health. involved in on a daily basis that involves carrying waste that is toxic and hazardo~ts Further, this act does not provide for relief measures or alternatives for workers irivol\red in ~nanttal scarenging. T h e r e are instances when cleaning workers die warliing in drains, etc. Rut no to eliminate s ~ c h compensation is provided for them. This displays a lack of political co~nrnitnlent acts even within the narrow scope of this Act. This has necessitated the filing of PILs before the Srlpreme Court in 42003 seeking the enforcement of the Act. This writ is still pending in court.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989:
This Act is often hailed as a powerful one to address atrocities against the SC/ST co~nmitnity. This is partially true. For instances, offences under Section 3 and + are non-bailable. No anticipatory bail is gi\.en since it facilitates immediate arrests. Also, once the FIR has been filed, no fi~rther comproi~lises can be made. However, the Act fails on many grounds too - implementation being an important one. IJack of political will on the part of judges and officers has led to many acquittals too. A case in example is the Kampalapalli case in Karnataka. Often referred to as the 'Jalianwala Bagh' of Karnataka, 5 Dalits were locked in their huts and burnt alive. T h e court proceedings in Kolaicourt concluded with an acquittal on groitnds of lack of evidence regarding fire being set to the hilts. The accused however, have not been given any bail by the Karnataka IIigh Court and the case is pending. T h e incident saw lots of media coverage, Dalit and other human rights organisations went on strike demanding the accused to be punished. Politicians such as Sonia Gandhi visited the place and met with the victim's family. ?'he court did not make any efyorts to understand why the witnesses would turn hostile. T h e coilrt never tried to understand the socio econoinic reasons why the witness or the victim's family would not against the accused. Despite alljitdgements, the victim's family woitld have to earn their livelihood and continue to depend on the upper caste families. 'The victim's father Venkataramappa says, "they have killed my two sons, my wife and my only daughter along with three others all because, we have been refusing to do menial jobs in our village that kve had been carrying on for decades. My eldest son Venliataramana was murdered two years ago.. . Our family left the village immediately after fearing, danger to our lives . . . . . . . the tahsildai- circle inspector bi-ottght all of us back to the village two months back stating that there will not be any

December 2009 -April 2010

danger to our lives.. ... We will never go back to Kampalapalli on any condition . . . how we can believe on any body's ass~~rance"'" The Dalit commilnity has lost t r ~ ~ in s t the legal system because of instances siicli as these. An abysnlal number ofDalit judges in the co1u.t further add to the situation. A sunrey fiom "LO2 states Co~lrt, only one was Dalit. T h e high c o ~ ~ rhad t s 25 Dalits that out of tlie 26 j~ldgesin the S~lpreme out of 625 positions.'" Another report named "Karimunda" in 1998; states that out of tlie 70 posts reser\.ed for SC candidates, only 15 have been filled. Si~nilarly out of the 35 posts for S T candidate its as only 5 have been filled. An in depth study on the composition of the courts, laws involving D a1' 'well as the statutes are essential.

Concept of Morality, Crime and Punishment

Notions of crime, pilnishment and the associated morality are often deemed to be 'neutral' in modern law. It is possible to significantly critique such an argument fi-om a Dalit perspective for instance. T h e manusmriti's spirit of obedience expected from Dalit people continues in one form or another. Values of being obedient to the mastel; honest with tlie master, work hard for tlie inaster ancl so on are still engrained. With formal legal codes, there is also the practice 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 trial. Cases of crinie committed at the insistence of the master by the Dalit servant as it were are not inquired into wit11 this background at the trial. Prevailing practices of treating marginalized coniniunities as more s~~sceptible to cornmit crime is one that remains ilnqilestioned within the courti.oom. It is possible to do in depth stiidies of case law to critically analyse such practices. It is through these analyses that the stigma that remains ingrained within court processes can be exposed This may then lead way to productive changes within the court structures putting in place mechanisms that could at least begin to address these broad issues.

Conclusion
The above account hopes to suggest \various aspects which can be looked into in tlie broader area of legal enquiries into Dalit studies. These areas, as we can see often emerge from specific laws and the debates around the same. T h e effect of this analysis will extend to social- economic and political such as tlie reser\ration debate spheres. Standard frames of discussion in the context of Dalit st~ldies can be problematised through these analyses. A historical approach and a focus on law can pro\,e to be usefill. While the law in its essence can be argued to be the 'formal' discourse as it were, stories it can tell us, in s the can make a formidable history of caste based hierarchy as well as dissent. T h e r i ~ p t i ~ r e allegedly firm and 'equal' structure of the law can tell us reams about discrimination and dissent against the same. T h e law is an interesting site as it is one that provides space fornially while reiterating pre-existing poLver structures. It is this contrast that makes in a \librant field for academic inquiry in many fields, including that of Dalit studies.

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Interview of Mr.Venkataramayya father of Venkataramappa -11-2000 " Hidden face of Aptheried Hari" page . I 1 " Presidents no on Chattisgarh Judges" Indian Express, February 3,2002